ex_10-1.htm


    EXHIBIT
10.1


      


       

      


       

       

      ___________________________________________________

       

       

      COMMODITY
COLLATERAL REVOLVING

      CREDIT
AGREEMENT

       

      Dated
as of July 8, 2008

       

      ___________________________________________________

       

      


       

      CALPINE
CORPORATION,

      as
Borrower

       

      


       

      THE
LENDERS FROM TIME TO TIME PARTIES HERETO

       

       

      GOLDMAN
SACHS CREDIT PARTNERS L.P.,

      as
Payment Agent

       

       

      GOLDMAN
SACHS CREDIT PARTNERS L.P.,

      as
Sole Lead Arranger and Sole Bookrunner

       

      


       


      
        
          
             

             

          

           


        

        
           


          
            

          

        

        
           


          
            TABLE
OF CONTENTS

            


            Page


          

        

      


      
        	
                ARTICLE
      I DEFINITIONS; CONSTRUCTION

              	
                1

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 1.01

              	 
      	
                Defined
      Terms.

              	
                1

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 1.02

              	 
      	
                Terms
      Generally.

              	
                15

              
	 
      	 
      
	
                ARTICLE
      II ADVANCES AND REPAYMENTS

              	
                15

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 2.01.

              	 
      	
                Commitments.

              	
                15

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 2.02.

              	 
      	
                Computation
      of MTM Exposure.

              	
                15

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 2.03.

              	 
      	
                Computation
      of Advance Amounts.

              	
                16

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 2.04.

              	 
      	
                Advances.

              	
                17

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 2.05.

              	 
      	
                Repayment
      of Advances by the Borrower.

              	
                18

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 2.06.

              	 
      	
                Payment
      Instructions.

              	
                18

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 2.07.

              	 
      	
                Deemed
      Transactions.

              	
                18

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 2.08.

              	 
      	
                Fees.

              	
                19

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 2.09.

              	 
      	
                Evidence
      of Indebtedness.

              	
                19

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 2.10.

              	 
      	
                Computation
      of Interest.

              	
                20

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 2.11.

              	 
      	
                Payment
      of Interest.

              	
                20

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 2.12.

              	 
      	
                Repayments
      Prior to the Commitment Termination Date.

              	
                20

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 2.13.

              	 
      	
                Termination
      and Reduction of Commitments.

              	
                21

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 2.14.

              	 
      	
                Reserve
      Requirements; Change in Circumstances.

              	
                21

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 2.15.

              	 
      	
                Change
      in Legality.

              	
                23

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 2.16.

              	 
      	
                Pro
      Rata Treatment.

              	
                23

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 2.17.

              	 
      	
                Sharing
      of Setoffs.

              	
                24

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 2.18.

              	 
      	
                Payments.

              	
                24

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 2.19.

              	 
      	
                Taxes.

              	
                25

              
	 
      	 
      
	
                ARTICLE
      III REPRESENTATIONS AND WARRANTIES

              	
                27

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 3.01.

              	 
      	
                Existence;
      Compliance with Law.

              	
                27

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 3.02.

              	 
      	
                Power;
      Authorizations; Enforceable Obligations.

              	
                27

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 3.03.

              	 
      	
                No
      Legal Bar.

              	
                28

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 3.04.

              	 
      	
                Accuracy
      of Information.

              	
                28

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 3.05.

              	 
      	
                Financial
      Condition.

              	
                28

              


      

      



      
        
          
            
              	 	
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            TABLE
OF CONTENTS

            (continued)

            Page


          

        

      


      


      
        	 
      	
                SECTION 3.06.

              	 
      	
                Subsidiaries.

              	
                29

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 3.07.

              	 
      	
                Title
      to Assets; Liens.

              	
                29

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 3.08.

              	 
      	
                No
      Default.

              	
                29

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 3.09.

              	 
      	
                Use
      of Proceeds.

              	
                30

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 3.10.

              	 
      	
                Litigation.

              	
                30

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 3.11.

              	 
      	
                Federal
      Regulations.

              	
                30

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 3.12.

              	 
      	
                Compliance
      with Law.

              	
                30

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 3.13.

              	 
      	
                Taxes.

              	
                30

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 3.14.

              	 
      	
                ERISA.

              	
                30

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 3.15.

              	 
      	
                Environmental
      Matters; Hazardous Material.

              	
                31

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 3.16.

              	 
      	
                Investment
      Company Act; Other Regulations.

              	
                31

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 3.17.

              	 
      	
                Labor
      Matters.

              	
                31

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 3.18.

              	 
      	
                Security
      Documents.

              	
                31

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 3.19.

              	 
      	
                Solvency.

              	
                32

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 3.20.

              	 
      	
                Senior
      Indebtedness.

              	
                32

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 3.21.

              	 
      	
                Certain
      Documents.

              	
                32

              
	 
      	 
      
	
                ARTICLE
      VI CONDITIONS

              	
                32

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 4.01.

              	 
      	
                Initial
      Advances.

              	
                32

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 4.02.

              	 
      	
                Conditions
      for All Advances.

              	
                34

              
	 
      	 
      
	
                ARTICLE
      V AFFIRMATIVE COVENANTS

              	
                34

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 5.01.

              	 
      	
                Financial
      Statements, Etc.

              	
                34

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 5.02.

              	 
      	
                Certificates;
      Other Information.

              	
                35

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 5.03.

              	 
      	
                Payment
      of Obligations.

              	
                37

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 5.04.

              	 
      	
                Maintenance
      of Existence; Compliance with Contractual Obligations and Requirements of
      Law.

              	
                37

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 5.05.

              	 
      	
                Maintenance
      of Property; Insurance.

              	
                37

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 5.06.

              	 
      	
                Inspection
      of Property; Books and Records; Discussions.

              	
                37

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 5.07.

              	 
      	
                Notices.

              	
                38

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 5.08.

              	 
      	
                Environmental
      laws.

              	
                39

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 5.09.

              	 
      	
                Employee
      Benefits.

              	
                39

              


      

      



      
        
          
            
              	 
      	
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            TABLE
OF CONTENTS

            (continued)

            Page


          

        

      


      


      
        	 
      	
                SECTION 5.10.

              	 
      	
                Further
      Assurances.

              	
                39

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 5.11.

              	 
      	
                First
      Priority Lien.

              	
                41

              
	 
      	 
      	 
      	 
      	 
      
	
                ARTICLE
      VI NEGATIVE COVENANTS

              	
                41

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 6.01.

              	 
      	
                Limitation
      on Indebtedness.

              	
                41

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 6.02.

              	 
      	
                Limitation
      on Liens.

              	
                46

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 6.03.

              	 
      	
                Prohibition
      on Fundamental Changes.

              	
                49

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 6.04.

              	 
      	
                Limitation
      on Sale of Assets.

              	
                50

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 6.05.

              	 
      	
                Limitation
      on Issuances of Capital Stock and Dividends.

              	
                51

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 6.06.

              	 
      	
                Limitation
      on Investments, Loans and Advances.

              	
                52

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 6.07.

              	 
      	
                Transactions
      with Affiliates.

              	
                54

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 6.08.

              	 
      	
                Lines
      of Business.

              	
                55

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 6.09.

              	 
      	
                Optional
      Payments and Modifications of Certain Debt Instruments.

              	
                55

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 6.10.

              	 
      	
                Sales
      and Leasebacks.

              	
                55

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 6.11.

              	 
      	
                Swap
      Agreements.

              	
                56

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 6.12.

              	 
      	
                Changes
      in Fiscal Periods.

              	
                56

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 6.13.

              	 
      	
                Negative
      Pledge Clauses.

              	
                56

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 6.14.

              	 
      	
                Clauses
      Restricting Subsidiary Distributions.

              	
                57

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 6.15.

              	 
      	
                Capital
      Expenditures.

              	
                58

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 6.16.

              	 
      	
                Use
      of Proceeds.

              	
                58

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 6.17.

              	 
      	
                Financial
      Covenants.

              	
                58

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 6.18.

              	 
      	
                CES
      Subsidiary Guarantors.

              	
                60

              
	 
      	 
      
	
                ARTICLE
      VII EVENTS OF DEFAULT

              	
                60

              
	 
      	 
      
	
                ARTICLE
      VIII THE AGENTS

              	
                63

              
	 
      	 
      
	 
      	
                SECTION 8.01.

              	 
      	
                Appointment;
      Powers and Duties.

              	
                63

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 8.02.

              	 
      	
                General
      Immunity.

              	
                64

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 8.03.

              	 
      	
                Lenders’
      Representations, Warranties and Acknowledgment.

              	
                66

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 8.04.

              	 
      	
                Right
      to Indemnity.

              	
                66

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 8.05.

              	 
      	
                Withholding
      Taxes.

              	
                67

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 8.06.

              	 
      	
                Successor
      Agent.

              	
                67

              


      

      



      
        
          
            
              	 
      	
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            TABLE
OF CONTENTS

            (continued)

            Page


          

        

      


      


      
        	
                ARTICLE
      IX MISCELLANEOUS

              	
                68

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 9.01.

              	 
      	
                Certain
      Modifications.

              	
                68

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 9.02.

              	 
      	
                Notices.

              	
                69

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 9.03.

              	 
      	
                Survival
      of Agreement.

              	
                71

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 9.04.

              	 
      	
                Binding
      Effect.

              	
                71

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 9.05.

              	 
      	
                Successors
      and Assigns; Participants.

              	
                71

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 9.06.

              	 
      	
                Expenses;
      Indemnity.

              	
                75

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 9.07.

              	 
      	
                [Reserved]

              	
                76

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 9.08.

              	 
      	
                Applicable
      Law.

              	
                76

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 9.09.

              	 
      	
                Waivers;
      Amendment.

              	
                76

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 9.10.

              	 
      	
                Entire
      Agreement.

              	
                78

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 9.11.

              	 
      	
                Severability.

              	
                78

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 9.12.

              	 
      	
                Counterparts.

              	
                78

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 9.13.

              	 
      	
                Headings.

              	
                78

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 9.14.

              	 
      	
                Interest
      Rate Limitation.

              	
                78

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 9.15.

              	 
      	
                Jurisdiction;
      Venue.

              	
                79

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 9.16.

              	 
      	
                Confidentiality.

              	
                80

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 9.17.

              	 
      	
                Electronic
      Communications.

              	
                81

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 9.18.

              	 
      	
                Patriot
      Act.

              	
                81

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 9.19.

              	 
      	
                Electronic
      Execution of Assignments.

              	
                81

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 9.20.

              	 
      	
                No
      Fiduciary Duty.

              	
                82

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 9.21.

              	 
      	
                Trading
      Acknowledgment.

              	
                82

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SECTION 9.22.

              	 
      	
                Lien
      Sharing and Priority Confirmation.

              	
                83

              


      

      


      


      


       


      
        
          
            
              	 
      	
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            TABLE
OF CONTENTS

            (continued)

            


             

          

        

      


      EXHIBITS,
SCHEDULES AND ANNEXES

      


      Exhibit A
– Form of Assignment and Acceptance

      Exhibit B
– Disclaimer for Mark-to-Market Calculations

      Exhibit C
– Form of Borrowing Notice

      Exhibit D
– Certain Reference Prices

      


      Schedule
2.01 – Commitments

      



      
        
          
            
              	 
      	
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          CREDIT
AGREEMENT (this “Agreement”),
dated as of July 8, 2008, among Calpine Corporation, a Delaware corporation (the
“Borrower”),
the lenders listed in Schedule 2.01 (together with their successors and assigns,
the “Lenders”),
Goldman Sachs Credit Partners L.P. (“GSCP”), as
payment agent for the Lenders (in such capacity, the “Payment
Agent”) and GSCP, as sole lead arranger and sole bookrunner (in such
capacity, the “Lead
Arranger”).

           

          WITNESSETH:

           

          WHEREAS,
the Borrower has requested that the Lenders provide the commodity collateral
revolving credit agreement (the “Facility”)
hereinafter described in the amounts and on the terms and conditions set forth
herein; and

           

          WHEREAS,
the Lenders have agreed to provide such facility on the terms and conditions set
forth herein, and GSCP has agreed to act as Payment Agent on behalf of the
Lenders on such terms and conditions set forth herein.

           

          NOW,
THEREFORE, the parties hereto agree as follows:

           

          ARTICLE
I

           

          DEFINITIONS;
CONSTRUCTION

           

          SECTION
1.01. 
Defined Terms.

           

          (a)  As used
in this Agreement, the following terms shall have the meanings specified
below:

           

          “Adjusted Total
Commitment” shall
mean at any time the Total Commitment less the aggregate
Commitments of all Defaulting Lenders.

           

          “Administrative
Agent” shall
have the meaning ascribed to such term in Article VIII (b).

           

          “Advance”
shall mean each advance made pursuant to Article II and collectively the “Advances”.

           

          “Advance
Date” shall mean (i) the Closing Date and (ii) each Related Advance
Date.

           

          “Affiliate”
shall mean, when used with respect to a specified Person, another Person that
directly or indirectly controls or is controlled by or is under common control
with the Person specified.  For the purposes of the foregoing,
“control,” “controlled by” and “under common control with” with respect to any
Person shall mean the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such Person, whether
through ownership of voting securities or by contract or otherwise.

           

          “Agent”
shall have the meaning set forth in Section 8.01(d) below.

           

          “Agent
Affiliates” shall have the meaning ascribed to such term in Section
9.02(b)(iii).

          


          
            
              
                 


              

              
                 


                
                  

                

              

              
                 


              

            

          

          


          “Aggregate
Outstanding Advances” shall mean, on any date of determination, an amount
equal to the aggregate principal amount of all then outstanding Advances made by
all Lenders.

           

          “Agreement” shall
have the meaning ascribed to such term in the preamble hereto.

           

          “Applicable
Reserve Requirement” means at any time, the maximum rate, expressed as a
decimal, at which reserves (including any basic marginal, special, supplemental,
emergency or other reserves) are required to be maintained with respect thereto
against “Eurocurrency liabilities” (as such term is defined in Regulation D)
under regulations issued from time to time by the Board or other applicable
banking regulator.  Without limiting the effect of the foregoing, the
Applicable Reserve Requirement shall reflect any other reserves required to be
maintained by such member banks with respect to (i) any category of liabilities
which includes deposits by reference to which the applicable LIBO Rate or any
other interest rate of an Advance is to be determined, or (ii) any category of
extensions of credit or other assets which include Advances.  An
Advance shall be deemed to constitute Eurocurrency liabilities and as such shall
be deemed subject to reserve requirements without benefits of credit for
proration, exceptions or offsets that may be available from time to time to the
applicable Lender.  The rate of interest on Advances shall be adjusted
automatically on and as of the effective date of any change in the Applicable
Reserve Requirement.

           

          “Approved
Electronic Communications” shall mean any notice, demand, communication,
information, document or other material that the Borrower provides to the Agent
pursuant to this Agreement or the transactions contemplated herein which is
distributed to the Agent or to the Lenders by the means of electronic
communications pursuant to Section 9.02(b).

           

          “Approved
Fund” shall have the meaning ascribed to such term in Section
9.05(c).

           

          “Assignee”
shall have the meaning ascribed to such term in Section 9.05(c).

           

          “Assignment and
Acceptance” shall
mean an assignment and acceptance entered into by a Lender and an assignee (with
the consent of any party whose consent is required hereby), and accepted by the
Agent, in substantially the form of Exhibit
A.

           

          “Available
Amount” shall have the meaning ascribed to such term in Section
2.03(b).

           

          “Available
Commitment” shall
mean, as of any date, an amount equal to the excess, if any, of (i) the amount
of the Total Commitment over (ii) the
Aggregate Outstanding Advances.

           

          “Availability
Date” shall have the meaning ascribed to such term in Section
2.03(b).

           

          “Availability
Notice” shall have the meaning ascribed to such term in Section
2.03(b).

           

          “Bankruptcy
Code” shall mean the Bankruptcy Reform Act of 1978, as heretofore and
hereafter amended, and codified as 11 U.S.C. §§101 et seq.

           

          “Benefited
Lender” shall have the meaning ascribed to such term in Section
2.17(a).

          


          
            
              
                 


              

              
                2

                
                  

                

              

              
                 


              

            

          

          


          “Board” shall
mean the Board of Governors of the Federal Reserve System of the United States,
or any successor thereto.

           

          “Board of
Directors” shall
mean the board of directors of the Borrower or any duly authorized committee
thereof.

           

          “Borrower” shall
have the meaning given such term in the preamble hereto.

           

          “Borrowing
Notice” shall have the meaning ascribed to such term in Section
2.04(b).

           

          “Business
Day” shall
mean any day (other than a day that is a Saturday, Sunday or legal holiday in
the State of New York) on which banks are open for business in New York City;
provided, however, that, when used in
connection with (i) any interest rate settings as to an Advance or (ii) any
fundings, disbursements or settlements in respect of any such Advance, the term
“Business Day” shall exclude any day on which banks are not open for dealings in
dollar deposits in the London interbank market.

           

          “Calculation Agent
Determination” shall have the meaning ascribed to such term in the
Commodity Definitions, it being understood that any reference to “Calculation
Agent” therein shall mean the Borrower.

           

          “Change of
Control” shall
be deemed to have occurred upon (i) the acquisition after the Closing Date of
ownership, directly or indirectly, beneficially or of record, by any Person or
group (within the meaning of the Exchange Act and the rules of the SEC
thereunder as in effect on the date hereof) of shares representing more than 50%
of the aggregate ordinary voting power represented by the issued and outstanding
capital stock of the Borrower; (ii) the occupation of a majority of seats (other
than vacant seats) on the Board of Directors by Persons who were neither
nominated by the Board of Directors on the Closing Date or appointed or
nominated by directors so nominated; or (iii) the occurrence of a Specified
Change of Control; provided that no
Change of Control shall be deemed to have occurred as a result of the
consummation of a Plan of Reorganization.

           

          “Charges”
shall have the meaning ascribed to such term in Section 9.14.

           

          “Closing
Date” shall
mean the date of the Initial Advance hereunder.

           

          “Closing
Date MTM
Exposure” shall have the meaning ascribed to such term in Section
2.03(a).

           

          “Code” shall
mean the Internal Revenue Code of 1986, as the same may be amended from time to
time, including (unless the context requires otherwise) any rules or regulations
promulgated thereunder.

           

          “Collateral”
shall have the meaning ascribed to such term in the Existing Facility Credit
Agreement.

           

          “Collateral Agency
and Intercreditor Agreement” shall have the meaning ascribed to such term
in the Existing Facility Credit Agreement.

          


          
            
              
                 


              

              
                3

                
                  

                

              

              
                 


              

            

          

          


          “Collateral
Agent” shall mean have the meaning ascribed to such term in the Existing
Facility Credit Agreement.

           

          “Collateral
Requirements” shall have the meaning ascribed to such term in the
Existing Facility Credit Agreement.

           

          “Combined MTM
Exposure” shall mean, for each Computation Date, an amount calculated by
the Borrower (or, if the Borrower fails to make such calculation, the Agent)
equal to the mark-to-market exposure (i.e., unrealized gain or loss) that a
single counterparty in the position of the “fixed price” payor (or an equivalent
position) would have on a combined basis for all of the Deemed Transactions
(inclusive of unpaid settlement amounts, but not termination amounts) as of such
Computation Date; provided that if such single counterparty would be
“out-of-the-money” (i.e., would have an unrealized loss) on the Deemed
Transactions, then the MTM Exposure shall equal zero.

          


          “Commitment” shall
mean, (a) with respect to each Lender that is a Lender on the date hereof, the
amount set forth opposite such Lender’s name on Schedule 2.01 and (b) in the
case of any Lender that becomes a Lender after the date hereof, the amount
specified as such Lender’s “Commitment” in the Assignment and Acceptance
pursuant to which such Lender assumed a portion of the Total
Commitment.  The Total Commitment and accordingly, the Commitment of
each Lender, may be permanently terminated or reduced from time to time pursuant
to Section 2.13 or modified from time to time pursuant to Section
9.05.  The Commitment of each Lender shall automatically and
permanently terminate on the Commitment Termination Date if not terminated
earlier pursuant to the terms hereof.

           

          “Commitment
Fee” shall
have the meaning provided in Section 2.08(a).

           

          “Commitment Fee
Rate” shall
mean, with respect to the Available Commitment, on any date, 1.50% per
annum.

           

          “Commitment
Maturity Date” shall mean the date that is two years after the Closing
Date, or if such date is not a Business Day, the next succeeding Business
Day.

           

          “Commitment
Percentage” shall mean at any time, for each Lender, the percentage
obtained by dividing (a) such Lender’s Commitment at such time by (b) the amount
of the Total Commitment at such time; provided that at any
time when the Total Commitment shall have been terminated, each Lender’s
Commitment Percentage shall be the percentage obtained by dividing (a) such
Lender’s Credit Exposure at such time by (b) the Credit Exposure of all Lenders
at such time.

           

          “Commitment
Reduction” shall have the meaning provided in Section
2.13(c).

           

          “Commitment
Termination Date” shall mean the earlier to occur of (a) the Commitment
Maturity Date and (b) the date on which the Commitments shall have terminated in
accordance with the terms hereof.

           

          “Commodity
Definitions” shall mean the 2005 ISDA Commodity Definitions, as published
by the International Swaps and Derivatives Association, Inc., without giving
effect to

          


          
            
              
                 


              

              
                4

                
                  

                

              

              
                 


              

            

          

          


          any
amendment, supplement, updating or restatement thereof after the Closing Date
unless otherwise agreed to by the Borrower and the Agent.

           

          “Commodity Hedge
Agreements” shall mean any agreement providing for swaps (including
without limitation heat rate swaps), caps, collars, puts, calls, floors,
futures, options, spots, forwards, power purchase, tolling or sale agreements,
fuel purchase or sale agreements, emissions credit purchase or sales agreements,
power transmission agreements, fuel transportation agreements, fuel storage
agreements, netting agreements, or commercial or trading agreements, each with
respect to, or involving the purchase, transmission, distribution, sale, lease
or hedge of, any energy, generation capacity or fuel, or any other energy
related commodity or service, price or price indices for any such commodities or
services or any other similar derivative agreements, and any other similar
agreements, entered into in the ordinary course of business in order to manage
fluctuations in the price or availability of any commodity.

           

          “Communications”
shall have the meaning set forth in Section 9.17(a).

           

          “Computation
Date” shall mean (i) with respect to the Closing Date MTM Exposure, the
Business Day preceding the Closing Date and (ii) thereafter, any each Monday or
if such Monday is not a Business Day, the first Business Day
thereafter.

           

          “Credit
Documents” shall mean this Agreement, the Security Documents, the Fee
Letter and any amendment, waiver, supplement or other modification to any of the
foregoing.

           

          “Credit
Exposure” shall mean, with respect to any Lender at any time, the sum of
the aggregate principal amount of the outstanding Advances of such
Lender.

           

          “Deemed
Transactions” shall have the meaning ascribed to such term in Section
2.07(a).

           

          “Default” shall
mean any event or condition which with notice, lapse of time or both would
constitute an Event of Default.

           

          “Default
Rate” shall have the meaning ascribed to such term in Section
2.11(b).

           

          “Defaulting
Lender” shall mean any Lender that (a) has failed to fund any portion of
the Advances required to be funded by it hereunder within one Business Day of
the date required to be funded by it hereunder, unless such failure has been
cured, (b) has otherwise failed to pay over to the Agent or any other Lender any
other amount required to be paid by it hereunder within one Business Day of the
date when due, unless the subject of a good faith dispute or unless such failure
has been cured, or (c) has been deemed insolvent or become the subject of a
bankruptcy or insolvency proceeding.

           

          “dollars” or
“$” shall
mean lawful money of the United States of America.

           

          “Disruption
Fallbacks” shall mean, in such order, Fallback Reference Price,
Postponement, Negotiated Fallback, Fallback Reference Dealers and Calculation
Agent Determination.

          


          
            
              
                 


              

              
                5

                
                  

                

              

              
                 


              

            

          

          


          “Eligible
Commodity Hedge Agreement” shall mean (i) any agreement in effect on the
Closing Date that constituted (immediately prior to the Closing Date) an
“Eligible Commodity Hedge Agreement” as defined in the Existing DIP Agreement,
and (ii) any Commodity Hedge Agreement entered into (or amended) by any Loan
Party with a counterparty from time to time in the ordinary course of business,
consistent with Prudent Industry Practice and not for speculative purposes, it
being understood that whether a Commodity Hedging Agreement satisfies the
criteria in this clause (ii) shall be determined at the time such agreement is
entered into and/or amended.  For the avoidance of doubt, the
following transactions shall always be considered speculative and not be
included in clause (ii) hereof: (i) any fixed price purchase of fuel that does
not have an associated fixed price electricity sale; (ii) any fixed price sale
of electricity that does not have an associated fixed price fuel purchase or is
not used to hedge the heat rate differential between the Projects and the market
or used to hedge any geothermal or storage Project; and (iii) any fixed price
sale of fuel, other than forward sales of fuel to hedge the heat rate
differential between the Borrower’s (and its Subsidiaries’) Projects and the
market or used to hedge any geothermal or storage Project.

           

          “Eligible
Commodity Hedge Financing” shall mean any letter of credit and/or
revolving loan facility (including a commodity collateral revolving loan
facility) that is entered into by a Loan Party so long as (i) such letters of
credit or the proceeds of such facility are applied solely to collateralize
obligations of the Loan Parties to the counterparties under the Eligible
Commodity Hedge Agreements to the extent that such counterparties are not
otherwise secured by the Collateral and (ii) the obligations of the Loan Parties
under such facility are secured by the Collateral pursuant to Section 6.02(n) on
a pari passu basis with the Eligible Commodity Hedge Agreements and are not
secured by any other assets of the Loan Parties.

           

          “ERCOT MTM
Exposure” shall mean, for each Computation Date, an amount calculated by
the Borrower (or, if the Borrower fails to make such calculation, the Agent)
equal to the mark-to-market exposure (i.e., unrealized gain or loss) that a
single counterparty in the position of the “fixed price” payor (or an equivalent
position) would have on a combined basis for all of the Deemed ERCOT
Transactions (inclusive of unpaid settlement amounts, but not termination
amounts) as of such Computation Date; provided that if such single counterparty
would be “out-of-the-money” (i.e., would have an unrealized loss) on the Deemed
ERCOT Transactions, then the ERCOT MTM Exposure shall equal zero.

          


          “ERISA” shall
mean the Employee Retirement Income Security Act of 1974, as the same may be
amended from time to time, including (unless the context requires otherwise) any
rules or regulations promulgated and any rulings issued thereunder.

           

          “Event of
Default” shall
have the meaning assigned to such term in Article VII, provided that any
requirement for the giving of notice, the lapse of time, or both, has been
satisfied.

           

          “Exchange
Act” shall
mean the Securities Exchange Act of 1934, as amended from time to time, and any
successor statute.

           

          “Excluded
Provisions” shall mean (i) Sections 3.02, 3.03, 3.05(b), 3.09, 3.11,
3.18, 3.21 5.07(a) and (f), 5.11, 6.01(a), 6.13(a) and 6.16 and (ii) Sections
3.04, 3.10 and 3.16 (only insofar

          


          
            
              
                 


              

              
                6

                
                  

                

              

              
                 


              

            

          

          


          as an
amendment, modification, supplement, consent or waiver of the Sections in clause
(ii) relates to this Agreement as it is directly or indirectly referred to
therein).

           

          “Existing Facility
Administrative Agent” shall mean the “Administrative Agent” under (and as
defined in) the Existing Facility Credit Agreement.

           

          “Existing Facility
Credit Agreement” shall
mean the Credit Agreement dated as of January 31, 2008 among the Borrower, the
lenders party thereto, General Electric Capital Corporation, as sub-agent,
Goldman Sachs Credit Partners L.P., Credit Suisse, Deutsche Bank Securities Inc.
and Morgan Stanley Senior Funding, Inc., as co-syndication agents and
co-documentation agents, and Goldman Sachs Credit Partners L.P., as
administrative agent and collateral agent, as amended, modified or supplemented
from time to time

           

          “Existing Facility
Lenders” shall
mean the “Lenders” under (and as defined in) the Existing Facility Credit
Agreement.

           

          “Facility” shall
have the meaning provided in the recitals to this Agreement.

           

          “Fallback
Reference Dealers” shall have the meaning set forth in the Commodity
Definitions.

           

          “Fallback
Reference Price” shall have the meaning set forth in the Commodity
Definitions, it being understood that any reference to “Calculation Agent”
therein shall mean the Borrower.

           

          “Fees” shall mean the
arrangement fee and any other fees provided for in the Fee Letter.

           

          “Fee
Letter” shall mean that certain letter agreement, dated the date hereof,
among the Borrower, the Lenders and GSCP as to the payment of certain
fees.

           

          “Financial
Officer” of
any corporation or limited liability company shall mean the chief financial
officer, principal accounting officer, controller or treasurer of such
corporation or limited liability company.

           

          “Global
Entities” shall mean the collective reference to the Borrower and its
Restricted Subsidiaries.

           

          “Governmental
Authority” shall
mean any nation or government, any state or other political subdivision thereof,
any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative functions of or pertaining to government, any securities exchange
and any self-regulatory organization (including the National Association of
Insurance Commissioners).

           

          “Guarantee and
Collateral Agreement” shall have the meaning ascribed to such term in the
Existing Facility Credit Agreement.

           

          “Guarantee
Obligation” shall have the meaning ascribed to such term in the Existing
Facility Credit Agreement.

          


          
            
              
                 


              

              
                7

                
                  

                

              

              
                 


              

            

          

          


          “Guarantor”
shall have the meaning ascribed to such term in the Existing Facility Credit
Agreement.

           

          “Indebtedness”
of any Person at any date, shall mean, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person for the
deferred purchase price of property or services (other than current trade
payables incurred in the ordinary course of such Person’s business), (c) all
obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments, (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (e) all Capital Lease Obligations of such Person, (f)
all obligations of such Person, contingent or otherwise, as an account party or
applicant under or in respect of acceptances, letters of credit, surety bonds or
similar arrangements, (g) the liquidation value of all preferred Capital Stock
of such Person, (h) all Guarantee Obligations of such Person in respect of
obligations of the kind referred to in clauses (a) through (g) above, (i) all
obligations of the kind referred to in clauses (a) through (h) above secured by
(or for which the holder of such obligation has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including accounts and
contract rights) owned by such Person, whether or not such Person has assumed or
become liable for the payment of such obligation, and (j) all obligations of
such Person in respect of Swap Agreements. The Indebtedness of any Person shall
include the Indebtedness of any other entity (including any partnership in which
such Person is a general partner) to the extent such Person is liable therefor
as a result of such Person’s ownership interest in or other relationship with
such entity, except to the extent the terms of such Indebtedness expressly
provide that such Person is not liable therefor.  For purposes hereof,
preferred Capital Stock issued by the Borrower shall not constitute Indebtedness
hereunder unless it constitutes Disqualified Capital Stock.

           

          “Indemnitee”
shall have the meaning ascribed to such term in Section 9.06(c).

           

          “Initial
Advance” shall have the meaning ascribed to such term in Section
2.03(a).

           

          “Interest Payment
Date” shall mean the last day of each March, June, September and December
commencing with September 30, 2008 (or if such day is not a Business Day, the
Interest Payment Date shall be the next Business Day thereafter unless the
result of such extension would be to carry the Interest Period into another
calendar month in which event the Interest Payment Date shall be the immediately
preceding Business Day).

           

          “Interest
Period” shall
mean, with respect to each Advance, (i) initially, the period commencing on (and
including) the Closing Date (in the case of the Initial Advance) or the Advance
Date (in the case of any other Advance) to (but excluding) the first Interest
Payment Date following the Closing Date or such Advance Date and (ii)
thereafter, each period commencing on (and including) an Interest Payment Date
to (but excluding) the next Interest Payment Date.

           

          “Investment”
shall have the meaning set forth in Section 6.06.

          


          
            
              
                 


              

              
                8

                
                  

                

              

              
                 


              

            

          

          


          “Junior Lien
Agreement” shall have the meaning ascribed to such term in the Existing
Facility Credit Agreement.

           

          “Junior Lien
Indebtedness” shall have the meaning ascribed to such term in the
Existing Facility Credit Agreement.

           

          “Lead
Arranger” shall
mean GSCP.

           

          “Lenders” shall
have the meaning given such term in the preamble hereto.

           

          “LIBO Rate”
shall mean, for any Interest Period, the rate per annum obtained by dividing (i)
(a) the rate per annum (rounded to the nearest 1/100 of 1%) equal to the rate
determined by Agent to be the offered rate which appears on the page of the
Reuters Screen which displays an average British Bankers Association Interest
Settlement Rate (such page currently being LIBOR01 page) for deposits (for
delivery on the first day of such period) with a term equivalent to such period
in dollars, determined as of approximately 11:00 a.m. (London, England time) on
the date that is two Business Days prior to the commencement of such Interest
Period, or (b) in the event the rate referenced in the preceding clause (a) does
not appear on such page or service or if such page or service shall cease to be
available, the rate per annum (rounded to the nearest 1/100 of 1%) equal to the
rate determined by Agent to be the offered rate on such other page or other
service which displays an average British Bankers Association Interest
Settlement Rate for deposits (for delivery on the first day of such period) with
a term equivalent to such period in dollars, determined as of approximately
11:00 a.m. (London, England time) on the date that is two Business Days prior to
the commencement of such Interest Period, or (c) in the event the rates
referenced in the preceding clauses (a) and (b) are not available, the rate per
annum (rounded to the nearest 1/100 of 1%) equal to the offered quotation rate
to first class banks in the London interbank market by JPMorgan Chase Bank, N.A.
for deposits (for delivery on the first day of the relevant period) in dollars
of amounts in same day funds comparable to the principal amount of the
applicable Advance of the Agent, in its capacity as a Lender, for which the LIBO
Rate is then being determined with maturities comparable to such period as of
approximately 11:00 a.m. (London, England time) on the date that is two Business
Days prior to the commencement of such Interest Period, by (ii) an amount equal
to (a) one minus (b) the Applicable Reserve Requirement (provided that, if the
relevant period is not a one week, one month, two month or three month period
and, in the case of clauses (i)(a), (b) or (c) above, there are rates for such
other periods, then the LIBO Rate for such relevant period shall be determined
by straight line interpolation using the rates for the two other periods that
are closest in duration to such relevant period)

           

          “Lien” shall
mean any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest or any
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever (including any conditional sale or other title
retention agreement and any capital lease having substantially the same economic
effect as any of the foregoing).

           

          “Limited Recourse
Debt” shall have the meaning ascribed to such term in the Existing
Facility Credit Agreement.

          


          
            
              
                 


              

              
                9

                
                  

                

              

              
                 


              

            

          

          


          “Loan
Party” shall have the meaning ascribed to such term in the Existing
Facility Credit Agreement.

           

          “Market Disruption
Event” shall have the meaning as set forth in Section 7.04(d)(i) of the
Commodity Definitions without giving effect to Section 7.05(e)
thereof.

           

          “Material Adverse
Effect” shall
mean a material adverse effect on (a) the business, condition (financial or
otherwise), operations or assets of the Global Entities taken as a whole, in
each case, other than such effects attributable to the consummation of the
transactions contemplated by the Plan of Reorganization, the occurrence of the
Plan Effective Date and, in the case of time periods during the pendency of the
Cases, the commencement of the Cases or the existence of prepetition claims and
of defaults under such prepetition claims, (b) the validity or enforceability of
the Credit Documents, or (c) the rights and remedies of the Lenders, the Agent
and the Collateral Agent under the Credit Documents, taken as a
whole.

           

          “Material
Obligor” shall have the meaning ascribed to such term in the Existing
Facility Credit Agreement.

           

          “Maximum
Amount” shall mean, as of any day, (i) US$300,000,000 minus (ii) the
aggregate amount of Commitment Reductions pursuant to Section 2.13(c)
hereof.

           

          “Maximum
Rate” shall have the meaning ascribed to such term in Section
9.14(a).

           

          “Minimum
Amount” shall mean, as of any day, (i) US$100,000,000 minus (ii) the
aggregate amount of all Commitment Reductions pursuant to Section 2.13(c)
hereof; provided that if the foregoing results in a negative amount, then such
Minimum Amount shall equal zero.

           

          “MTM
Exposure” shall mean, for each Computation Date, the greatest of (i) the
ERCOT MTM Exposure, (ii) the NP-15 MTM Exposure and (iii) Combined MTM
Exposure.

          


          “MTM
Notice” shall have the meaning ascribed to such term in Section
2.02(a).

           

          “Negotiated
Fallback” shall have the meaning set forth in Section 7.05(c)(iii) of the
Commodity Definitions; provided, however,
the word “fifth” shall be replaced with the word “third”.

           

          “Non-Defaulting
Lender” shall mean and include each Lender other than a Defaulting
Lender.

           

          “Non-Excluded
Taxes” shall have the meaning ascribed to such term in Section
2.19(a).

           

          “Non-Loan
Parties” shall have the meaning ascribed to such term in the Existing
Facility Credit Agreement.

           

          “Non-U.S.
Lender” shall have the meaning ascribed to such term in Section
2.19(d).

           

          “NP-15 MTM
Exposure” shall mean, for each Computation Date, an amount calculated by
the Borrower (or, if the Borrower fails to make such calculation, the Agent)
equal to the

          


          
            
              
                 


              

              
                10

                
                  

                

              

              
                 


              

            

          

          


          mark-to-market
exposure (i.e., unrealized gain or loss) that a single counterparty in the
position of the “fixed price” payor (or an equivalent position) would have on a
combined basis for all of the Deemed NP-15 Transactions (inclusive of unpaid
settlement amounts, but not termination amounts) as of such Computation Date;
provided that if such single counterparty would be “out-of-the-money” (i.e.,
would have an unrealized loss) on the Deemed NP-15 Transactions, then the NP-15
MTM Exposure shall equal zero.

          


          “Obligations”
shall mean the unpaid principal of and interest on (including interest accruing
after the maturity of the Advances and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) the
Advances and all other obligations and liabilities of the Borrower to the Agent
or to any Lender, whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out
of, or in connection with, this Agreement, any other Credit Document or any
other document made, delivered or given in connection herewith or therewith,
whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including all fees, charges and disbursements of
counsel to the Agent or to any Lender that are required to be paid by the
Borrower pursuant hereto) or otherwise.

           

          “Original
Lender” shall have the meaning ascribed to it in Article VIII
(a).

           

          “Other
Taxes” shall mean any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement or any other Credit
Document.

           

          “Outstanding
Advances” shall mean with respect to any Lender, on any date of
determination, an amount equal to the aggregate principal amount of all
outstanding Advances made by such Lender.

           

          “Participant”
shall have the meaning ascribed to it in Section 9.05(d).

           

          “Payment
Instructions” shall mean standing instructions or ad hoc instructions provided
by the Borrower to the Agent and approved by the Agent (such approval not to be
unreasonably withheld, conditioned or delayed).

           

          “Pending
Advance” shall mean any Advance for which notice has been given by the
Borrower pursuant to Section 2.04(b), but which has not yet been advanced
hereunder.

           

          “Permitted
Acquisition” shall have the meaning ascribed to such term in the Existing
Facility Credit Agreement.

           

          “Permitted
Liens” shall mean Liens permitted to exist under Section
6.02.

           

          “Permitted
Refinancing” shall have the meaning ascribed to such term in the Existing
Facility Credit Agreement.

          


          
            
              
                 


              

              
                11

                
                  

                

              

              
                 


              

            

          

          


          “Person”
shall mean an individual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.

           

          “Platform”
shall have the meaning ascribed to such term in Section 5.01.

           

          “Postponement”
shall have the meaning set forth in the Commodity Definitions with two (2)
Commodity Business Days as the Maximum Days of Disruption (each as such term is
defined in the Commodity Definitions).

           

          “Public
Lender” shall have the meaning ascribed to such term in Section
9.16.

           

          “Projections”
shall have the meaning ascribed to such term in Section 5.02(c).

           

          “Refinancing”
shall have the meaning ascribed to such term in the Existing Facility Credit
Agreement.

           

          “Register” shall
have the meaning ascribed to such term in Section 9.05(c)(iv).

           

          “Regulation
D” means Regulation D of the Board, as in effect from time to
time.

           

          “Related Advance
Date” shall mean, with respect to any Computation Date, the first
Business Day to occur after the next Computation Date.

           

          “Repayment
Premium” shall have the meaning ascribed to such term in Section
2.12(a).

           

          “Required
Lenders” shall
mean, at any date, Non-Defaulting Lenders holding a majority of the Adjusted
Total Commitment as of such date or if the Total Commitment has been terminated
at such time, Non-Defaulting Lenders holding a majority of the Credit Exposure
(excluding the Credit Exposure of Defaulting Lenders) at such time.

           

          “Responsible
Officer” of
any corporation or limited liability company shall mean the chief executive
officer, president, any executive vice president or Financial Officer of such
corporation or limited liability company, but in any event, with respect to
financial matters, a Financial Officer.

           

          “Restricted
Payments” shall have the meaning ascribed to such term in Section
6.05.

           

          “SEC” shall
mean the Securities and Exchange Commission.

           

          “Secured
Parties” shall have the meaning ascribed to such term in the Guarantee
and Collateral Agreement.

           

          “Security
Documents” shall have the meaning ascribed to such term in the Existing
Facility Credit Agreement.

           

          “Solvent” shall
mean, when used with respect to any Person and its Subsidiaries, as of any date
of determination, (a) the amount of the “present fair saleable value” of the
assets of such Person and its Subsidiaries on a consolidated basis will, as of
such date, exceed the amount of all

          


          
            
              
                 


              

              
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          “liabilities
of such Person and its Subsidiaries on a consolidated basis, contingent or
otherwise”, as of such date, as such quoted terms are determined in accordance
with applicable federal and state laws governing determinations of the
insolvency of debtors, (b) the present fair saleable value of the assets of such
Person and its Subsidiaries will, as of such date, be greater than the amount
that will be required to pay the probable liability of such Person and its
Subsidiaries on a consolidated basis on its debts as such debts become absolute
and matured, (c) such Person and its Subsidiaries on a consolidated basis will
not have, as of such date, an unreasonably small amount of capital with which to
conduct their business, and (d) such Person and its Subsidiaries will be able to
pay their debts as they mature.  For purposes of this definition, (i)
“debt” means liability on a “claim”, and (ii) “claim” means any (x) right to
payment, whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured or (y) right to an equitable remedy for
breach of performance if such breach gives rise to a right to payment, whether
or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured or unmatured, disputed, undisputed, secured or
unsecured.

           

          “Specified Swap
Agreement” shall mean any Swap Agreement in respect of interest rates or
currency exchange rates entered into by the Borrower or any Guarantor and any
Person that is an Existing Facility Lender or an affiliate of an Existing
Facility Lender at the time such Swap Agreement is entered into.

           

          “Spread”
shall mean 2.875% (287.5 basis points).

           

          “Subsidiary” shall
mean as to any Person, a corporation, partnership, limited liability company or
other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests having
such power only by reason of the happening of a contingency) to elect a majority
of the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise qualified, all references to a “Subsidiary” or
to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries
of the Borrower.

           

          “Subordinated
Indebtedness” shall have the meaning ascribed to such term in the
Existing Facility Credit Agreement.

           

          “Subordinated
Indebtedness Agreement” shall have the meaning ascribed to such term in
the Existing Facility Credit Agreement.

           

          “Swap
Agreement” shall mean any agreement with respect to any swap, forward,
future or derivative transaction or option or similar agreement involving, or
settled by reference to, one or more rates, currencies, commodities, equity or
debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions (including, without
limitation, Commodity Hedge Agreements); provided that no
phantom stock or similar plan providing for payments only on account of services
provided by current or former directors, officers,

          


          
            
              
                 


              

              
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          employees
or consultants of the Borrower or any of its Subsidiaries shall be a “Swap
Agreement”.

           

          “Target Advance
Level” shall mean, as of any Computation Date, the greater of (i) the
Minimum Amount and (ii) the MTM Exposure; provided that if the
MTM Exposure for that Computation Date exceeds the Maximum Amount, the Target
Advance Level shall equal the Maximum Amount.

           

          “Total
Commitment” shall mean the sum of the Commitments of all the
Lenders.  The aggregate amount of Commitments as of the date hereof is
US$300,000,000.

           

          “Trading
Affiliates” shall have the meaning ascribed to such term in Section
9.21.

           

          “Transferee”
shall mean any Assignee or Participant.

           

          “Unsecured
Commodity Liquidity Facility” shall mean (a) the letter of credit
facility under that certain Letter of Credit Facility Agreement (Natural Gas)
dated as of June 25, 2008 between the Borrower and Morgan Stanley Capital
Services Inc., as amended, supplemented or otherwise modified from time to time,
and (b) any other liquidity facility entered into by a Loan Party (and not
guaranteed, directly or indirectly, by any Subsidiary that is not a Loan Party),
so long as (i) the amount of borrowings available to be made to any such Loan
Party is (at the time such facility is entered into) positively correlated with
the price of natural gas and/or power, (ii) the aggregate principal amount of
all such facilities shall not exceed $300,000,000 at any one time outstanding
and (iii) the obligations of all Loan Parties (whether acting as a borrower or a
guarantor) under all such facilities are unsecured.

           

          (b)  The
following terms shall have the meanings ascribed to such terms in the Existing
Facility Credit Agreement prior to giving effect to any amendments to such
agreement on or after the date hereof unless modified pursuant to Section
9.01(c) below: “Additional First
Priority Term Loans”; “Bankrupt
Subsidiary”; “Bankruptcy
Court”; “Blue Spruce
Refinancing Facility”; “Bridge Loan
Documents”; “Bridge Loan
Facility”; “Bridge
Loans”; “CalGen Makewhole
Payment”; “Capital
Expenditure”; “Capital Lease
Obligations”; “Capital
Stock”; “Case”;
“Cash
Equivalents”; “CCFC
Guaranty”; “Commonly
Controlled Entity”; “Consolidated
EBITDA”; “Consolidated
Interest Coverage Ratio”; “Consolidated
Interest Expense”; “Consolidated
Leverage Ratio”; “Consolidated
Senior Leverage Ratio”; “Compliance
Certificate”; “Contractual
Obligation”; “Confidential
Information Memorandum”; “Disposition”;
“Disqualified
Capital Stock”; “Domestic
Subsidiary”; “Eligible
Facility”; “Environmental
Laws”; “ERISA
Reorganization”; “Excess Cash
Flow”; “Excluded
Subsidiary”; “Existing DIP
Agreement”; “First Priority
Term Loans”; “Foreign
Subsidiary”; “Freeport
Guaranty”; “GAAP”;
“Global
Entity”; “Greenfield
Guaranty”; “Geysers
Entities”; “Incremental Term
Loans”; “Insolvency”;
“Intellectual
Property”; “Investment”;
“Loan”;
“Materials
of Environmental Concern”; “Metcalf
Refinancing Facility”; “Moody’s”;
“Multiemployer
Plan”; “Net Cash
Proceeds”; “Pasadena
Guaranty”; “PBGC”;
“Performance
Guarantee”; “Permitted PPA
Counterparty Lien”; “Pittsburg/
DEC/LMEC Guaranty”; “Plan”;
“Plan
Effective Date”; “Plan of
Reorganization”; “PPA Intercreditor
Agreement”; “Project”;
“Project
Investments”; “Project
Subsidiary”; “Prudent Industry
Practice”; “Reinvestment
Deferred Amounts”; “Reportable
Event”; “Reorganization”;
“Requirements of
Law”;

          


          
            
              
                 


              

              
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          “Restricted
Subsidiaries”; “S&P”;
“Single
Employer Plan”; “Solvent”;
“Specified
Change of Control”; “Stated
Maturity”; “Unrestricted”;
and “Wholly
Owned Guarantor”.

           

          (c)  With
respect to those definitions in Section 1.01(a) or (b) that incorporate
definitions used in the Existing Facility Credit Agreement (“Incorporated
Definitions”), such Incorporated Definitions shall have the meanings
ascribed to such terms in the Existing Facility Credit Agreement, on the date
hereof unless (i) otherwise agreed by the Agent on behalf of the Lenders or (ii)
modified pursuant to Section 9.01(c) below.

           

          SECTION
1.02. 
Terms Generally.

           

          The
definitions in Section 1.01 shall apply equally to both the singular and plural
forms of the terms defined.  Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter
forms.  The words “include,” “includes” and “including” shall be
deemed to be followed by the phrase “without limitation.” All references herein
to Articles, Sections, Exhibits, Schedules and Annexes shall be deemed
references to Articles and Sections of, and Exhibits, Schedules and Annexes to,
this Agreement unless the context shall otherwise require.  Except as
otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time to
time.  Unless otherwise stated, reference to any time means New York
City time.

           

          ARTICLE
II

           

          ADVANCES
AND REPAYMENTS

           

          SECTION
2.01. 
Commitments.

           

          (a)  Subject
to the terms and conditions and relying upon the representations and warranties
herein set forth, each Lender agrees, severally and not jointly, to make, based
on such Lender’s Commitment, Advances to the Borrower on each Advance Date (so
long as the Borrower shall request such Advance as provided below) until the
Commitment Termination Date; provided that no
Advance shall (i) for any Lender at any time, after giving effect thereto and to
the application of the proceeds thereof, result in such Lender’s Credit Exposure
at such time exceeding such Lender’s Commitment at such time and (ii) after
giving effect thereto and to the application of the proceeds thereof, result at
any time in the aggregate amount of the Lenders’ Credit Exposures at such time
exceeding the Total Commitment then in effect.  Such Advances may be
repaid and amounts repaid may be reborrowed, all in accordance with the terms
hereof.

           

          (b)  The
Borrower will borrow and repay Advances on and after the date hereof and prior
to the Commitment Termination Date subject to the terms, conditions and
limitations set forth herein.

           

          SECTION
2.02. 
Computation
of MTM Exposure.

           

          (a)  By no
later than 7:00 p.m., New York City time, on each Computation Date (unless it
has been prevented from doing so due to technical delay or failure or as a
result of a Market Disruption Event), the Borrower shall determine the MTM
Exposure as of the close of

          


          
            
              
                 


              

              
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          business
on such Business Day.  Promptly after making such determination, it
shall advise the Agent and the Lenders of that determination (each, an “MTM
Notice”) (which MTM Notice shall be provided via email).  If a
Market Disruption Event has occurred, then the Borrower shall, as promptly as
reasonably practicable, determine the MTM Exposure in accordance with the
Disruption Fallbacks and any other relevant provisions of the Commodity
Definitions.  If such determination is prevented due to a technical
delay or failure, the Borrower shall make such determination as promptly as
reasonably practicable after such matter is remedied.  If the Borrower
fails to make such calculation in with the foregoing, then the Agent shall make
such determination in the manner contemplated by Sections 2.02(b) and (c)
below.

           

          (b)  The Agent
shall promptly review each MTM Notice received by it from the Borrower and
advise the Borrower whether it agrees or disagrees with the computation of the
MTM Exposure set forth therein by no later than 12:00 Noon, New York City time,
on the first Business Day following the related Computation Date.  In
the event the Agent disagrees (and has a reasonable basis for disagreeing) with
such computation, the parties shall promptly endeavor to resolve such
disagreement. If the parties are unable to resolve such disagreement within one
Business Day, then (i) until such disagreement is resolved, the amount
determined by the Agent shall be effective for purposes hereof and (ii) the
parties shall mutually select a dealer (with respect to commodity related
calculations) or a financial institution (with respect to financial
calculations) that customarily acts as a calculation agent for similar
transactions to calculate such MTM Exposure.  If the parties cannot
agree on a dealer or bank within one (1) Business Day, then each party shall
appoint a dealer or bank and the appointed dealers or banks shall together
appoint a third dealer or bank as calculation agent for making the relevant
determination, and the decision of such party shall be final and binding upon
the parties.  The leading dealers or financial institutions selected
by a party shall not be parties to this Agreement or Affiliates of a party to
this Agreement.

           

          (c)  Without
limiting Section 2.02(a) or (b) above, the Borrower acknowledges that in
reviewing the calculation of the MTM Exposure hereunder, the Agent may use the
services of one or more its affiliated entities and any determination by such
affiliated entity shall be deemed subject to the standard disclaimer relating to
mark-to-market calculations, a copy of which is set forth in Exhibit B
hereto.

           

          (d)  Any
calculation of the MTM Exposure made by either party shall be made in the manner
provided for in the Calculation Agent Determination as if such party was the
“Calculation Agent” referred to therein.

           

          SECTION
2.03. 
Computation
of Advance Amounts.

           

          (a)  The MTM
Exposure shall be calculated as of the close of business on the Computation Date
immediately preceding the Closing Date (the “Closing Date MTM
Exposure”).  The amount of the Advance to be made on the
Closing Date shall equal the greater of (i) US$100,000,000 and (ii) the Closing
Date MTM Exposure (the “Initial
Advance”).

           

          (b)  On the
first Business Day after each Computation Date after the Closing Date (each, an
“Availability
Date”), the Agent shall determine whether the Target Advance Level is
greater than the Aggregate Outstanding Advances as of that Computation
Date.  By no later than

          


          
            
              
                 


              

              
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          12:00
Noon, New York City time, on each Availability Date (unless it has been
prevented from doing so due to a technical delay or failure or as a result of a
Market Disruption Event), the Agent shall notify the Lenders and the Borrower
(each such notice, an “Availability
Notice”) of the amount, if any, by which such Target Advance Level
exceeds the sum of such Aggregate Outstanding Advances and any Pending Advances
(each such excess, an “Available
Amount”; provided that if there is no such excess, such Available Amount
shall equal zero), which notice may be provided via email.

           

          SECTION
2.04. 
Advances.

           

          (a)  On the
Closing Date, subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender shall advance to
the Borrower such Lender’s portion, based on its Commitment Percentage, of the
Initial Advance.

           

          (b)  If the
Available Amount determined as of any Availability Date is greater than zero,
then the Borrower may borrow on the Related Advance Date, subject to the terms
and conditions and relying upon the representations and warranties herein set
forth, an Advance in an amount up to but not exceeding such Available Amount;
provided that the Borrower shall give the Agent irrevocable notice (a “Borrowing
Notice”) (which notice must be received by the Agent prior to 12:00 Noon,
New York City time on the first Business Day following such Availability Date)
specifying the amount of such Advance to be borrowed, which amount shall be no
less than $5,000,000 and integral multiples of $100,000 in excess of such
amount.  Each Borrowing Notice shall be substantially in the form of
Exhibit C
attached hereto.

           

          (c)  Subject
to the terms and conditions and relying upon the representations and warranties
herein set forth, each Lender shall advance to the Borrower such Lender’s
portion, based on its Commitment Percentage, of the Advance made on any Related
Advance Date.  Promptly after receipt of any Borrowing Notice, the
Agent shall notify each Lender and the Borrower of the Advance and such Lender’s
proportionate share thereof.

           

          (d)  All
Advances hereunder shall be made to the Borrower at: account no. 4430004366
Calpine Corporation – Commodity Collateral, ABA no. 122 000 496 at Union Bank of
California, Monterey Park, CA, subject to any alternative Payment , as from time
to time in effect, to the Agent, in which case Advances hereunder shall be made
as provided therein.  Subject to the foregoing, each Lender shall make
its portion of each Advance to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds to the Agent in New
York, New York, not later than 2:00 p.m., New York City time, and the Agent
shall by 3:00 p.m., New York City time, credit the amounts so received to the
account or accounts specified from time to time in one or more notices delivered
by the Borrower to the Agent or, if an Advance shall not occur on such date
because any condition precedent herein specified shall not have been met, return
the amounts so received to the respective Lenders.

           

          (e)  Each
Advance shall be made by the Lenders ratably in accordance with their respective
Commitment Percentages; provided, however,
that the failure of any Lender to make any Advance shall not in itself relieve
any other Lender of its obligation to lend hereunder (it being understood,
however, that (i) no Lender shall be responsible for the failure of any other
Lender to make any Advance required to be made by such other Lender and each
Lender

          


          
            
              
                 


              

              
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          severally
but not jointly shall be obligated to make the Advances provided to be made by
it hereunder, regardless of the failure of any other Lender to fulfill its
commitments hereunder and (ii) failure by a Lender to perform any of its
obligations under any of the Credit Documents shall not release any Person from
performance of its obligations under any Credit Document).

           

          (f)  Unless
the Agent shall have received notice from a Lender prior to the date of any
Advance that such Lender will not make available to the Agent such Lender’s
portion of such Advance, the Agent may assume that such Lender has made such
portion available to the Agent on the date of such Advance in accordance with
subsection (c) and the Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount.  If and
to the extent that such Lender shall not have made such portion available to the
Agent, such Lender agrees to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Agent, at the interest rate applicable at the time to the
corresponding amounts comprising such Advance.  If such Lender shall
repay to the Agent such corresponding amount, such amount shall constitute such
Lender’s portion of such Advance for purposes of this Agreement.  If
such Lender’s share of such Advance is not made available to the Agent by such
Lender within three (3) Business Days after demand therefor, the Agent shall
also be entitled to recover such amount with interest thereon at the rate per
annum applicable to Advances, on demand, from the Borrower, such recovery to be
without prejudice to the rights of the Borrower against any such
Lender.

           

          SECTION
2.05. 
Repayment of Advances by the
Borrower.

           

          On the
Commitment Termination Date, the Borrower shall repay to the Lenders the
Aggregate Outstanding Advances (including all accrued and unpaid interest
thereon, accrued Fees and other Obligations incurred in respect
thereof).

           

          SECTION
2.06. 
Payment
Instructions.

           

          From time
to time, the Borrower may establish with the Agent Payment Instructions
regarding the making of Advances hereunder.  So long as any such
Payment Instruction remains in effect, the terms thereof shall supersede any
conflicting terms set forth herein.

           

          SECTION
2.07. 
Deemed
Transactions.

           

          The
“Deemed
Transactions” shall consist of the ERCOT Deemed Transactions and NP-15
Deemed Transactions.

          


          The
“ERCOT
Deemed Transactions” shall consist of a portfolio of hypothetical three
year over-the-counter fixed-for-floating heat rate swap transactions, with
effective dates occurring on the Closing Date, (i) under which the Borrower (and
its Restricted Subsidiaries) are, on a net volume basis, the "floating price"
payor (or have an equivalent position) and which have net hourly volumes equal
to 1,833.33 MWh, with the Borrower delivering power for 5 days and 16 peak hours
(5x16) at Houston ERCOT and receiving an aggregate amount of natural gas equal
to 7.2  MMBtu per MWh of Houston ERCOT power from Houston Ship Channel
gas, and also receiving USD $26.89 per MWh of Houston ERCOT power and (ii) using
the Floating Price

          


          
            
              
                 


              

              
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          references
(including fallbacks) and natural gas price references (including fallbacks)
specified on Exhibit D hereto.

          


          The
“NP-15
Deemed Transactions” shall consist of a portfolio of hypothetical three
year over-the-counter fixed-for-floating heat rate swap transactions, with
effective dates occurring on the Closing Date, (i) under which the Borrower (and
its Restricted Subsidiaries) are, on a net volume basis, the "floating price"
payor (or have an equivalent position) and which have net hourly volumes equal
to 916.67 MWh, with the Borrower delivering power for 6 days and 16 peak hours
(6x16) at NP-15 and receiving 7.2 MMBtu per MWh of NP-15 power from PG&E
City-Gate gas and also receiving USD $24.55 per MWh of NP-15 power and (ii)
using the Floating Price references (including fallbacks) and natural gas price
references (including fallbacks) specified on Exhibit D hereto.

          


          SECTION
2.08. 
Fees.

           

          (a)  The
Borrower agrees to pay to the Agent, for the account of the Lenders (in each
case pro rata according
to the respective Commitments of all such Lenders), a commitment fee (the “Commitment
Fee”) for each day from the Closing Date to the Commitment Termination
Date.  Each Commitment Fee shall be payable by the Borrower (i)
quarterly in arrears on the tenth Business Day following the end of each March,
June, September and December (for the three-month period (or portion thereof)
ended on such day for which no payment has been received) and (ii) on the
Commitment Termination Date (for the period ended on such date for which no
payment has been received pursuant to clause (i)), and shall be computed for
each day during such period at a rate per annum equal to the Commitment Fee Rate
on the applicable portion of the Available Commitment in effect on such
day.

           

          (b)  The
Borrower agrees to pay to the Agent, for the account of the Lenders (in each
case pro rata according
to the respective Commitments of all such Lenders), the Fees as provided in the
Fee Letter; provided that, to the
extent any Fee is required under the Fee Letter as well as under this Agreement
then such payment shall be made by the Borrower without
duplication.

           

          (c)  All Fees
shall be paid on the dates due, in immediately available funds, to the Agent for
distribution, if and as appropriate, among the Lenders.  Once paid,
none of the Fees shall be refundable under any circumstances.

           

          SECTION
2.09. 
Evidence
of Indebtedness.

           

          (a)  Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness to such Lender resulting from each Advance
made by such Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time under this
Agreement.

           

          (b)  The Agent
shall maintain accounts in which it will record (i) the amount and date of each
Advance made hereunder, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder
and (iii) the amount of any sum received by the Agent hereunder from the
Borrower and each Lender’s share thereof.

          


          
            
              
                 


              

              
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          (c)  The
entries made in the accounts maintained pursuant to subsections (a) and (b)
above shall, to the extent permitted by applicable law, be prima facie evidence
of the existence and amounts of the obligations therein recorded; provided, however, that the failure
of any Lender or the Agent to maintain such accounts or any error therein shall
not in any manner affect the obligations of the Borrower to repay the
Outstanding Advances in accordance with their terms.  In the event of
any conflict between the accounts and records maintained by any Lender and the
accounts and records of the Agent in respect of such matters, the accounts and
records of the Agent shall control in the absence of manifest
error.

           

          SECTION
2.10. 
Computation
of Interest.

           

          (a)  Each
Advance shall bear interest for each day during each Interest Period with
respect thereto at a rate per annum equal to the LIBO Rate applicable to that
Interest Period plus the Spread.

           

          (b)  Interest
shall be computed on the basis of actual days elapsed over a year of 360
days.

           

          (c)  The Agent
shall compute the amount of interest due for each Interest Period and shall
notify the Borrower of such amount by no later than 10:00 a.m., New York City
time, on each Interest Payment Date.  Notice of such amount may be
provided by email. The Agent shall, at the request of the Borrower, deliver to
the Borrower a statement sharing the quotations (and, if applicable, the
calculations) used by the Agent in determining the interest rate
hereunder.

           

          SECTION
2.11. 
Payment
of Interest.

           

          (a)  On each
Interest Payment Date, the Borrower shall pay to the Agent, for the account of
the Lenders, the amount of interest applicable to the Interest Periods ending on
such Interest Payment Date as computed pursuant to Section 2.10 of this
Agreement.

           

          (b)  If all or
a portion of (i) the principal amount of any Advance or (ii) any interest
payable thereon or any other amount hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum (the “Default
Rate”) that is (x) in the case of overdue principal, the rate that would
be otherwise applicable thereto plus 2.0% or (y) in the case of any overdue
interest or other amounts due hereunder, to the extent permitted by applicable
law, the rate described in Section 2.10(a) plus 2.0% from the date of such
non-payment to the date on which such amount is paid in full (after as well as
before judgment).

           

          SECTION
2.12. 
Repayments
Prior to the Commitment Termination Date.

           

          (a)  The
Borrower may repay Advances prior to the Commitment Termination Date, without
penalty, in whole or in part, from time to time on and subject to the following
terms and conditions: (i) the Borrower shall give prior written notice (or
telephonic notice, confirmed in writing promptly) to the Agent of its intent to
make such repayment and the amount of such repayment, which notice shall be
given by the Borrower no later than 12:00 noon, New York City time on the
repayment date (which must be a Business Day), which notice shall promptly be
transmitted by the Agent to each Lender, (ii) each repayment shall be in an
aggregate principal

          


          
            
              
                 


              

              
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          amount of
at least US$500,000 and in whole multiples of US$100,000 in excess thereof;
provided that
no partial prepayment shall reduce the Aggregate Outstanding Advances to an
amount less than US$100,000,000, (iii) if the Commitments are not being
concurrently reduced by the amount of such repayment pursuant to Section 2.13(c)
below, then the Borrower shall concurrently with such repayment pay to the Agent
for the benefit of the Lenders a premium equal to 5% of such repayment amount
(each, a “Repayment
Premium”) and (iv) any such repayment pursuant to this Section 2.12 on
any day other than an Interest Payment Date shall be on and subject to
compliance by the Borrower with the applicable provisions of Section
2.18(c).

           

          (b)  In lieu
of making any payment pursuant to this Section 2.12 other than on an Interest
Payment Date so long as no Event of Default shall have occurred and be
continuing, the Borrower at its option may deposit with the Agent the amount
required to be repaid and the Advances shall be repaid on the next Interest
Payment Date in the required amount.  Such deposit shall be held by
the Agent in a corporate time deposit account established on terms reasonably
satisfactory to the Agent, earning interest at the then customary rate for
accounts of such type.  Such deposit shall constitute cash collateral
for the Advances to be so prepaid; provided that the
Borrower may at any time direct that such deposit be applied to make the
applicable payment required pursuant to this Section 2.12.

           

          SECTION
2.13. 
Termination and Reduction of
Commitments.

           

          (a)  The
Commitments shall terminate automatically on the Commitment Termination
Date.

           

          (b)  Upon at
least two Business Days’ prior irrevocable written notice to the Agent, the
Borrower may at any time, in whole or in part permanently terminate the
Commitments.  The Agent shall advise the Lenders of any notice given
pursuant to this subsection (b).

           

          (c)  In
connection with any repayment of any Advances pursuant to Section 2.12 above,
the Borrower may, at its option, permanently reduce the Commitments by the
amount of such repayment (a “Commitment
Reduction”), with each Lender’s Commitment being reduced by its share of
such payment based on its Commitment Percentage; provided that the Borrower
shall notify the Agent of such reduction in the notice of such repayment that it
provides to the Agent pursuant to Section 2.12.

           

          (d)  The
Borrower shall pay to the Agent, for the account of the Lenders, on the date of
the termination of the Commitments, any Fees accrued through the date of such
termination.

           

          SECTION
2.14. 
Reserve Requirements; Change in
Circumstances.

           

          (a)  Notwithstanding
any other provision herein, if after the date of this Agreement any change in
applicable law or regulation or in the interpretation or administration thereof
by any Governmental Authority charged with the interpretation or administration
thereof (whether or not having the force of law) shall (i) subject any Lender to
any tax of any kind whatsoever with respect to this Agreement or any Advance
made by it or change the basis of taxation of payments to any Lender hereunder
(except for changes in respect of taxes on the overall net income of such Lender
(as the case may be) or its lending office imposed by the jurisdiction in which
such Lender’s (as the case may be) principal executive office or lending office
is located),

          


          
            
              
                 


              

              
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          (ii)
shall result in the imposition, modification or applicability of any reserve,
special deposit or similar requirement against assets of, deposits with or for
the account of or credit extended by any Lender or (iii) shall result in the
imposition on any Lender or the London interbank market of any other condition
affecting this Agreement, such Lender’s Commitment or any Advance made by such
Lender, and the result of any of the foregoing shall be to increase the cost to
such Lender of making or maintaining any Outstanding Advances or to reduce the
amount of any sum received or receivable by such Lender hereunder (whether of
principal, interest or otherwise) by an amount reasonably deemed by such Lender
to be material, then the Borrower shall, upon receipt of the notice and
certificate provided for in subsection (c) below promptly pay to such Lender
such additional amount or amounts as will compensate such Lender for such
additional costs incurred or reduction suffered.

           

          (b)  If any
Lender shall have determined that the adoption after the date hereof of any law,
rule, regulation or guideline regarding capital adequacy, or any change in any
of the foregoing or in the interpretation or administration of any of the
foregoing by any Governmental Authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Lender (or any lending office of such Lender) or any Lender’s holding company
with any request or directive regarding capital adequacy (whether or not having
the force of law) of any such authority, central bank or comparable agency, has
or would have the effect of reducing the rate of return on such Lender’s capital
or on the capital of such Lender’s holding company, if any, as a consequence of
this Agreement, such Lender’s Commitment or the Advances made by such Lender
pursuant hereto to a level below that which such Lender or such Lender’s holding
company could have achieved but for such adoption, change or compliance (taking
into consideration such Lender’s policies and the policies of such Lender’s
holding company with respect to capital adequacy) by an amount reasonably deemed
by such Lender to be material, then from time to time such additional amount or
amounts as will compensate such Lender for any such reduction suffered will be
paid to such Lender by the Borrower.  It is acknowledged that this
Agreement is being entered into by the Lenders on the understanding that the
Lenders will be required to maintain capital against their Commitments, under
currently applicable laws, regulations and regulatory guidelines.  In
the event the Lenders shall otherwise determine that such understanding is
incorrect, it is agreed that the Lenders will be entitled to make claims under
this subsection (b) based upon market requirements prevailing on the date hereof
for commitments under comparable credit facilities against which capital is
required to be maintained.

           

          (c)  A
certificate of each Lender setting forth such amount or amounts as shall be
necessary to compensate such Lender or its holding company as specified in
subsection (a) or (b) above, as the case may be, and containing an explanation
in reasonable detail of the manner in which such amount or amounts shall have
been determined, shall be delivered to the Borrower (with a copy to the Agent)
and shall be conclusive absent manifest error.  The Borrower shall pay
each Lender the amount shown as due on any such certificate delivered by it
within 10 days after its receipt of the same.  Each Lender shall give
prompt notice to the Borrower of any event of which it has knowledge, occurring
after the date hereof, that it has determined will require compensation by the
Borrower pursuant to this Section; provided,
however, that failure
by such Lender to give such notice shall not constitute a waiver of such
Lender’s right to demand compensation hereunder.

          


          
            
              
                 


              

              
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          (d)  Failure
on the part of any Lender to demand compensation for any increased costs or
reduction in amounts received or receivable or reduction in return on capital
with respect to any period shall not constitute a waiver of such Lender’s right
to demand compensation with respect to such period or any other period; provided
that the Borrower shall not be required to compensate a Lender pursuant to this
Section for any amounts incurred more than 180 days prior to the date that such
Lender notifies the Borrower of such Lender’s intention to claim compensation
therefor; provided further that, if the circumstances giving rise to such claim
have a retroactive effect, then such 180 days period shall be extended to
include the period of such retroactive effect.  The obligations of the
Borrower pursuant to this Section shall survive the termination of this
Agreement and the payment of all amounts payable hereunder.  The
protection of this Section shall be available to each Lender regardless of any
possible contention of the invalidity or inapplicability of the law, rule,
regulation, guideline or other change or condition which shall have occurred or
been imposed.

           

          (e)  Each
Lender agrees that it will designate a different lending office if such
designation will avoid the need for, or reduce the amount of, such compensation
or any payment under Section 2.19 hereof and will not, in the reasonable
judgment of such Lender be disadvantageous to such Lender.

           

          SECTION
2.15. 
Change in
Legality.

           

          (a)  Notwithstanding
any other provision herein, if any change in any law or regulation or in the
interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof shall make it unlawful for any Lender
to make or maintain any Advance or to give effect to its obligations as
contemplated hereby with respect to any Advance, then, by written notice to the
Borrower and to the Agent, such Lender may:

           

          (i)  declare
that Advances will not thereafter be made by such Lender (any Lender delivering
such a declaration hereby agreeing to withdraw such declaration promptly upon
determining that such event of illegality no longer exists); and

           

          (ii)  require
that all outstanding Advances made by it be subject to a rate equal to the costs
of funds of such Lender as reasonably determined by such Lender.

           

          (b)  For
purposes of this Section, a notice by any Lender shall be effective as to each
Advance, if lawful, on the last day of the Interest Period currently applicable
to such Advance; in all other cases such notice shall be effective on the date
of receipt.

           

          SECTION
2.16. 
Pro Rata
Treatment.

           

          Except as
required under Sections 2.14 and 2.17, each Advance, each repayment of any
Advance, each payment of interest on the Advances and each payment of the Fees
shall be allocated pro rata
among the Lenders in accordance with their respective Commitments (or, if
such Commitments shall have expired or been terminated, in accordance with the
respective principal amounts of their Outstanding Advances).  Each
Lender agrees that in computing such Lender’s portion of any Advance to be made
hereunder, the Agent may, in its discretion, round each Lender’s percentage of
such Advance to the next higher or lower whole dollar amount.

          


          
            
              
                 


              

              
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          SECTION
2.17. 
Sharing of
Setoffs.

           

          (a)  Except to
the extent that this Agreement, any other Credit Document or a court order
expressly provides for payments to be allocated to a particular Lender or to the
Lenders hereunder, if any Lender (a “Benefited
Lender”) shall receive any payment of all or part of the Obligations
owing to it (other than in connection with an assignment or participation made
pursuant to Section 9.05), or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set off, pursuant to events or
proceedings of the nature referred to in Section 7(f)), or otherwise), in a
greater proportion than any such payment to or collateral received by any other
Lender, if any, in respect of the Obligations owing to such other Lender, such
Benefited Lender shall purchase for cash from the other Lenders a participating
interest in such portion of the Obligations owing to each such other Lender, or
shall provide such other Lenders with the benefits of any such collateral, as
shall be necessary to cause such Benefited Lender to share the excess payment or
benefits of such collateral ratably with each of the Lenders; provided that if all
or any portion of such excess payment or benefits is thereafter recovered from
such Benefited Lender, such purchase shall be rescinded, and the purchase price
and benefits returned, to the extent of such recovery, but without
interest.

           

          SECTION
2.18. 
Payments.

           

          (a)  The
Borrower shall make each payment (including principal of or interest on any
Advance or any Fees or other amounts) hereunder from an account in the United
States not later than 2:00 p.m., New York City time, on the date when due in
dollars to the Agent in immediately available funds.  Each Payment
shall be made without off-set, deduction or counterclaim; provided that the
foregoing shall not constitute a relinquishment or waiver of the Borrower’s
rights to any independent claim that the Borrower may have against the Agent or
any Lender.

           

          (b)  Any
payments under this Agreement that are made later than 2:00 p.m., New York City
time (other than payments made by the Agent in accordance with Section 2.04(d)),
shall be deemed to have been made on the next succeeding Business
Day.  Whenever any payment (including principal of or interest on
Advance or any Fees or other amounts) hereunder shall become due, or otherwise
would occur, on a day that is not a Business Day, such payment may be made on
the next succeeding Business Day, and such extension of time shall in such case
be included in the computation of interest or Fees, if applicable.

           

          (c)  The
Borrower agrees to indemnify each Lender for, and to hold each Lender harmless
from, any loss or expense that such Lender may sustain or incur as a consequence
of (a) default by the Borrower in making a borrowing of Advances after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment of Advances after the Borrower has given a notice thereof in
accordance with the provisions of this Agreement or (c) the making of a
prepayment of Advances on a day that is not the last day of an Interest Period
with respect thereto.  Such indemnification may include an amount
equal to the excess, if any, of (i) the amount of interest that would have
accrued on the amount so prepaid, or not so borrowed, for the period from the
date of such prepayment or of such failure to borrow to the last day of such
Interest Period (or, in the case of a failure to borrow, the Interest Period
that would have commenced on the date of such failure) in each case at the
applicable rate of interest for such Advances provided for herein

          


          
            
              
                 


              

              
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          over (ii)
the amount of interest (as reasonably determined by such Lender) that would have
accrued to such Lender on such amount by placing such amount on deposit for a
comparable period with leading banks in the London interbank
market.  A certificate as to any amounts payable pursuant to this
Section submitted to the Borrower (with a copy to the Agent) by any Lender shall
be conclusive in the absence of manifest error.  Notwithstanding
anything to the contrary in this Section, the Borrower shall not be required to
compensate a Lender pursuant to this Section for any amounts incurred more than
180 days prior to the date that such Lender notifies the Borrower of such
Lender’s intention to claim compensation therefor; provided that, if the
circumstances giving rise to such claim have a retroactive effect, then such 180
days period shall be extended to include the period of such retroactive
effect.  This covenant shall survive the termination of this Agreement
and the payment of the Advances and all other amounts payable
hereunder.

           

          SECTION
2.19. 
Taxes.

           

          (a)  All
payments made by the Borrower under this Agreement and the other Credit
Documents shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes, gross receipt taxes (imposed in lieu of
net income taxes) and franchise taxes (imposed in lieu of net income taxes)
imposed on the Agent or any Lender as a result of a present or former connection
between the Agent or such Lender and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from the Agent
or such Lender having executed, delivered or performed its obligations or
received a payment under, or enforced, this Agreement or any other Credit
Document).  If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings (“Non-Excluded
Taxes”) or Other Taxes are required to be withheld from any amounts
payable to the Agent or any Lender hereunder, the amounts so payable to the
Agent or such Lender shall be increased to the extent necessary to yield to the
Agent or such Lender (after payment of all Non-Excluded Taxes and Other Taxes)
interest or any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement, provided, however, that the Borrower shall
not be required to increase any such amounts payable to any Lender with respect
to any Non-Excluded Taxes (i) that are attributable to such Lender’s failure to
comply with the requirements of paragraph (d) or (f) of this Section or (ii)
that are United States withholding taxes imposed on amounts payable to such
Lender at the time such Lender becomes a party to this Agreement, except to the
extent that such Lender’s assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Borrower with respect to such
Non-Excluded Taxes pursuant to this paragraph.

           

          (b)  In
addition, the Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.

           

          (c)  Whenever
any Non-Excluded Taxes or Other Taxes are payable by the Borrower, as promptly
as possible thereafter the Borrower shall send to the Agent for its own account
or for the account of the relevant Lender, as the case may be, a certified copy
of an original official receipt received, if any, by the Borrower or other
documentary evidence showing payment

          


          
            
              
                 


              

              
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          thereof.  If
the Borrower fails to pay any Non-Excluded Taxes or Other Taxes when due to the
appropriate taxing authority or fails to remit to the Agent the required
receipts or other required documentary evidence, the Borrower shall indemnify
the Agent or the Lenders for any such taxes and for any incremental taxes,
interest or penalties that may become payable by the Agent or any Lender as a
result of any such failure.

           

          (d)  Each
Lender (or Transferee) that is not a “U.S. Person” as defined in Section
7701(a)(30) of the Code (a “Non U.S.
Lender”) shall deliver to the Borrower and the Agent (or, in the case of
a Participant, to the Lender from which the related participation shall have
been purchased) two copies of either U.S. Internal Revenue Service Form W-8BEN,
Form W-8ECI or W-8IMY (and all necessary attachments), or, in the case of a Non
U.S. Lender claiming exemption from U.S. federal withholding tax under Section
871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, a
statement substantially in the form of Exhibit G to the Existing Facility Credit
Agreement and a Form W-8BEN, or any subsequent versions thereof or successors
thereto, properly completed and duly executed by such Non U.S. Lender claiming
complete exemption from, or a reduced rate of, U.S. federal withholding tax on
all payments by the Borrower under this Agreement and the other Credit
Documents.  Such forms shall be delivered by each Non U.S. Lender on
or before the date it becomes a party to this Agreement (or, in the case of any
Participant, on or before the date such Participant purchases the related
participation).  In addition, each Non U.S. Lender shall deliver such
forms promptly upon the obsolescence or invalidity of any form previously
delivered by such Non U.S. Lender.  Each Non-U.S. Lender shall
promptly notify the Borrower at any time it determines that it is no longer in a
position to provide any previously delivered certificate to the Borrower (or any
other form of certification adopted by the U.S. taxing authorities for such
purpose).  Notwithstanding any other provision of this paragraph, a
Non U.S. Lender shall not be required to deliver any form pursuant to this
paragraph that such Non U.S. Lender is not legally able to deliver.

           

          (e)  A Lender
that is entitled to an exemption from or reduction of non-U.S. withholding tax
under the law of the jurisdiction in which the Borrower is located, or any
treaty to which such jurisdiction is a party, with respect to payments under
this Agreement shall deliver to the Borrower (with a copy to the Agent), at the
time or times prescribed by applicable law or reasonably requested by the
Borrower, such properly completed and executed documentation prescribed by
applicable law as will permit such payments to be made without withholding or at
a reduced rate, provided that such
Lender is legally entitled to complete, execute and deliver such documentation
and in such Lender’s judgment such completion, execution or submission would not
materially prejudice the legal position of such Lender.

           

          (f)  Any
Lender that is a United States person, as defined in Section 7701(a)(30) of the
Internal Revenue Code, and is not an exempt recipient within the meaning of
Treasury Regulations Section 1.6049-4(c), shall deliver to the Borrower (with a
copy to the Agent) two accurate and complete original signed copies of Internal
Revenue Service Form W-9, or any successor form that such person is entitled to
provide at such time in order to comply with United States back-up withholding
requirements.

           

          (g)  If the
Agent or any Lender determines, in its sole discretion, that it has received a
refund of any Non-Excluded Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this

          


          
            
              
                 


              

              
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          Section
2.19, it shall pay over such refund to the Borrower (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrower under this
Section 2.19 with respect to the Non-Excluded Taxes or Other Taxes giving rise
to such refund), net of all out-of-pocket expenses of the Agent or such Lender
and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided that the
Borrower, upon the request of the Agent or such Lender, agrees to repay the
amount paid over to the Borrower (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the Agent or such Lender in
the event the Agent or such Lender is required to repay such refund to such
Governmental Authority.  This paragraph shall not be construed to
require the Agent or any Lender to make available its tax returns (or any other
information relating to its taxes which it deems confidential) to the Borrower
or any other Person.

           

          (h)  The
agreements in this Section 2.19 shall survive the termination of this Agreement
and the payment of the Advances and all other amounts payable
hereunder.

           

          ARTICLE
III

           

          REPRESENTATIONS
AND WARRANTIES

           

          The
Borrower represents and warrants to the Agent and to each Lender as follows on
the Closing Date and on each date required pursuant to Article IV:

           

          SECTION
3.01. 
Existence;
Compliance with Law.

           

          Each Loan
Party (a) is duly organized, validly existing and (to the extent such concept is
applicable) in good standing under the laws of the jurisdiction of its
organization, (b) has the power and authority, and the legal right, to own and
operate its property, to lease the property it operates as lessee and to conduct
the business in which it is currently engaged, (c) is duly qualified as a
foreign corporation or other organization and (to the extent such concept is
applicable) in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification and (d) is in compliance with all Requirements of
Law, except, in the case of each of the foregoing clauses (a) through (d), to
the extent that the failure to comply therewith would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.

           

          SECTION
3.02. 
Power;
Authorizations; Enforceable Obligations.

           

          Each Loan
Party has the power and authority, and the legal right, to make, deliver and
perform the Credit Documents to which it is a party and, in the case of the
Borrower, to obtain extensions of credit hereunder.  Each Loan Party
has taken all necessary organizational action to authorize the execution,
delivery and performance of the Credit Documents to which it is a party and, in
the case of the Borrower, to authorize the extensions of credit on the terms and
conditions of this Agreement.  No consent or authorization of, filing
with, notice to or other act by or in respect of, any Governmental Authority or
any other Person is required in connection with the extensions of credit
hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement or any of the Credit Documents, except (i) that
have been obtained or made and are in full force and effect and (ii) the filings
made in respect of the

          


          
            
              
                 


              

              
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          Security
Documents.  Each Credit Document has been duly executed and delivered
on behalf of each Loan Party party thereto.  This Agreement
constitutes, and each other Credit Document upon execution will constitute, a
legal, valid and binding obligation of each Loan Party party thereto,
enforceable against each such Loan Party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).

           

          SECTION
3.03. 
No
Legal Bar.

           

          The
execution, delivery and performance of this Agreement and the other Credit
Documents, the borrowings hereunder and the use of the proceeds thereof will not
violate any Requirement of Law or any Contractual Obligation of any Loan Party
and will not result in, or require, the creation or imposition of any Lien on
any of their respective properties or revenues pursuant to any Requirement of
Law or any such Contractual Obligation (other than the Liens created by the
Security Documents).  No Requirement of Law or Contractual Obligation
applicable to the Borrower or any of its Subsidiaries could reasonably be
expected to have a Material Adverse Effect.

           

          SECTION
3.04. 
Accuracy
of Information.

           

          No
statement or information contained in this Agreement, any other Credit Document,
the Confidential Information Memorandum (other than projections and pro forma
financial information) or any other document, certificate or statement furnished
by or on behalf of the Borrower to the Agent or the Lenders, or any of them, for
use in connection with the transactions contemplated by this Agreement or the
other Credit Documents, contained as of the date such statement, information,
document or certificate was so furnished, taken as a whole and in light of the
circumstances in which made, any untrue statement of a material fact or omitted
to state a material fact necessary to make the statements contained herein or
therein not misleading.  The projections and pro forma financial
information contained in the materials referenced above were prepared in good
faith based on assumptions believed by management of the Borrower to be
reasonable at the time made, it being recognized by the Lenders that such
financial information as it relates to future events is not to be viewed as fact
and that actual results during the period or periods covered by such financial
information may differ from the projected results set forth therein by a
material amount.  There is no fact known to any Loan Party that could
reasonably be expected to have a Material Adverse Effect that has not been
expressly disclosed herein, in the other Credit Documents, in the Confidential
Information Memorandum or in any other documents, certificates and statements
furnished to the Agent and the Lenders for use in connection with the
transactions contemplated hereby and by the other Credit Documents.

           

          SECTION
3.05. 
Financial
Condition.

           

          (a)  The
audited consolidated balance sheets of the Borrower and its consolidated
Subsidiaries as at December 31 of the most recently ended three fiscal years of
the Borrower ending prior to the Closing Date for which audited financial
statements were delivered, and the related consolidated statements of income and
of cash flows for the fiscal years ended on such dates, reported on by and
accompanied by an unqualified report by a nationally recognized

          


          
            
              
                 


              

              
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          accounting
firm, present fairly in all material respects the consolidated financial
condition of the Borrower and its Subsidiaries as at such date, and the
consolidated results of its operations and its consolidated cash flows for the
respective fiscal years then ended.  The unaudited consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at the end of
the most recently ended fiscal quarter of the Borrower ending prior to the
Closing Date for which unaudited financial statements were delivered, and the
related unaudited consolidated statements of income and cash flows for the
period ended on such fiscal quarter end, present fairly in all material respects
the consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such date, and the consolidated results of its operations and
its consolidated cash flows for the period ended on such fiscal quarter end
(subject to normal year end audit adjustments).  All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except as approved by the aforementioned firm of accountants and
disclosed therein).  As of the date of such financial statements, no
Global Entity has any material Guarantee Obligations, contingent liabilities and
liabilities for taxes, or any long term leases or unusual forward or long term
commitments, including any interest rate or foreign currency swap or exchange
transaction or other obligation in respect of derivatives, that are not
reflected in the most recent financial statements referred to in this
paragraph.

           

          (b)  Since
December 31, 2006, there has been no development or event that has had or would
reasonably be expected to have a Material Adverse Effect.

           

          SECTION
3.06. 
Subsidiaries.

           

          (a) 
Schedule 3.06 annexed to the Existing Facility Credit Agreement (as may be
supplemented in writing from time to time by the Borrower) sets forth the name
and jurisdiction of organization of each Subsidiary of the Borrower and, as to
each such Subsidiary, the percentage of each class of Capital Stock owned by any
Loan Party and (b) there are no outstanding subscriptions, options, warrants,
calls, rights or other agreements or commitments (other than stock options or
restricted stock granted to employees or directors and directors’ qualifying
shares) of any nature relating to any Capital Stock of the Borrower or any of
its Subsidiaries directly owned by the Loan Parties that are included in the
Collateral, except as created by the Credit Documents or permitted under Section
6.02(c) or Sections 6.02(w) and (z).

           

          SECTION
3.07. 
Title
to Assets; Liens.

           

          The Loan
Parties have title in fee simple to, or a valid leasehold or easement interest
in, all their material real property, taken as a whole, and good and marketable
title to, or a valid leasehold or easement interest in, all their other material
property, taken as a whole, and none of such property is subject to any Lien
except Permitted Liens.

           

          SECTION
3.08. 
No
Default.

           

          No Global
Entity is in default under or with respect to any of its Contractual Obligations
in any respect that would reasonably be expected to have a Material Adverse
Effect.

          


          
            
              
                 


              

              
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          SECTION
3.09. 
Use
of Proceeds.

           

          The
proceeds of the Advances shall be used
to collateralize obligations of the Loan Parties to the counterparties under
Eligible Commodity Hedge Agreements.

           

          SECTION
3.10. 
Litigation.

           

          Except as
disclosed in writing to the Agent and the Lenders prior to the date hereof, no
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Borrower,
threatened by or against any Global Entity or against any of their respective
properties or revenues (a) with respect to any of the Credit Documents or any of
the transactions contemplated hereby or thereby, or (b) that could reasonably be
expected to have a Material Adverse Effect.

           

          SECTION
3.11. 
Federal
Regulations.

           

          No part
of the proceeds of any Advances will be used (a) for “buying” or “carrying” any
“margin stock” within the respective meanings of each of the quoted terms under
Regulation U as now and from time to time hereafter in effect for any purpose
that violates the provisions of the regulations of the Board or (b) for any
purpose that violates the provisions of the regulations of the
Board.  If requested by any Lender or the Agent in order to comply
with any Requirement of Law, the Borrower will furnish to the Agent and each
Lender a statement to the foregoing effect in conformity with the requirements
of FR Form G-3 or FR Form U 1, as applicable, referred to in Regulation
U.

           

          SECTION
3.12. 
Compliance
with Law.

           

          No Global
Entity is in violation of any applicable law, rule or regulation, or in default
with respect to any judgment, writ, injunction or decree of any Governmental
Authority, the violation of which, or a default with respect to which, would
reasonably be expected to have a Material Adverse Effect.

           

          SECTION
3.13. 
Taxes.

           

          Each
Global Entity has filed or caused to be filed all Federal and state income tax
and other material tax returns that are required to be filed and has paid all
taxes shown to be due and payable on said returns or on any assessments made
against it or any of its property and all other taxes, fees or other charges
imposed on it or any of its property by any Governmental Authority (other than
any the amount or validity of which are currently being contested in good faith
by appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of the relevant Global Entity); no tax Lien
has been filed, and, to the knowledge of the Borrower, no claim is being
asserted, with respect to any such tax, fee or other charge other than Liens or
claims permitted under this Agreement.

           

          SECTION
3.14. 
ERISA.

           

          Except
as, individually or in the aggregate, does not or could not reasonably be
expected to result in a Material Adverse Effect: neither a Reportable Event nor
an “accumulated funding

          


          
            
              
                 


              

              
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          deficiency”
(within the meaning of Section 412 of the Code or Section 302 of ERISA) has
occurred during the five year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each Plan
has complied in all respects with the applicable provisions of ERISA and the
Code; no termination of a Single Employer Plan has occurred, and no Lien in
favor of the PBGC or a Plan has arisen, during such five-year period; the
present value of all accrued benefits under each Single Employer Plan (based on
those assumptions used to fund such Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or deemed
made, exceed the value of the assets of such Plan allocable to such accrued
benefits; neither the Borrower nor any Commonly Controlled Entity has had a
complete or partial withdrawal from any Multiemployer Plan; neither the Borrower
nor any Commonly Controlled Entity would become subject to any liability under
ERISA if the Borrower or any such Commonly Controlled Entity were to withdraw
completely from all Multiemployer Plans as of the valuation date most closely
preceding the date on which this representation is made or deemed made; and no
such Multiemployer Plan is in Reorganization or Insolvent.

           

          SECTION
3.15. 
Environmental
Matters; Hazardous Material.

           

          There has
been no matter with respect to Environmental Laws or Materials of Environmental
Concern which, individually or in the aggregate, would reasonably be expected to
have a Material Adverse Effect.

           

          SECTION
3.16. 
Investment
Company Act; Other Regulations.

           

          No Loan
Party is an “investment company”, or a company “controlled” by an “investment
company”, within the meaning of the Investment Company Act of 1940, as
amended.  No Loan Party is subject to regulation under any Requirement
of Law (other than Regulation X of the Board) that limits its ability to incur
Indebtedness under this Agreement and the other Credit Documents.

           

          SECTION
3.17. 
Labor
Matters.

           

          Except
as, in the aggregate, would not reasonably be expected to have a Material
Adverse Effect: (a) there are no strikes or other labor disputes against any
Global Entity pending or, to the knowledge of the Borrower, threatened; (b)
hours worked by and payment made to employees of each Global Entity have not
been in violation of the Fair Labor Standards Act or any other applicable
Requirement of Law dealing with such matters; and (c) all payments due from any
Global Entity on account of employee health and welfare insurance have been paid
or accrued as a liability on the books of the relevant Global
Entity.

           

          SECTION
3.18. 
Security
Documents.

           

          The
Obligations rank at least pari passu in right of payment and upon liquidation of
the Collateral with the Loan Parties’ obligations to the Existing Facility
Lenders with respect to the Existing Facility Credit Agreement, pursuant to the
terms of the Security Documents and the Collateral Agency and Intercreditor
Agreement.

          


          
            
              
                 


              

              
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          SECTION
3.19. 
Solvency.

           

          (a) 
The Borrower is and (b) the Loan Parties, taken as a whole, are, and after
giving effect to the incurrence of all Indebtedness and obligations being
incurred in connection herewith and with the Plan of Reorganization will be,
Solvent.

           

          SECTION
3.20. 
Senior
Indebtedness.

           

          The
Obligations constitute “Senior Indebtedness” (or similar such term) of the
Borrower under each Subordinated Indebtedness Agreement.  The
obligations of each Subsidiary Guarantor under the Guarantee and Collateral
Agreement constitute “Guarantor Senior Indebtedness” (or similar such term) of
such Subsidiary Guarantor under each Subordinated Indebtedness
Agreement.

           

          SECTION
3.21. 
Certain
Documents.

           

          The
Borrower has delivered to the Agent a complete and correct copy of the Existing
Facility Credit Agreement, the Guarantee and Collateral Agreement, the
Collateral Agency and Intercreditor Agreement, each Subordinated Indebtedness
Agreement and each Junior Lien Agreement, as currently in effect, including any
amendments, supplements or modifications with respect to any of the
foregoing.

           

          ARTICLE
IV

           

          CONDITIONS

           

          The
obligations of the Lenders to make Advances hereunder are subject to the
satisfaction of the following conditions:

           

          SECTION
4.01. 
Initial Advances.

           

          The
Commitment of each Lender to fund its portion of the Initial Advance on the
Closing Date is subject to the following conditions:

           

          (a)  The Agent
shall have received the following Credit Documents: (i) counterparts of this
Agreement executed by the parties hereto, (ii) the Guarantee and Collateral
Agreement and the Collateral Agency and Intercreditor Agreement and (iii) the
Fee Letter.

           

          (b)  The Agent
shall have received favorable written legal opinions of (i) Kirkland & Ellis
LLP, counsel to the Borrower, and (ii) Morrison & Foerster, special New York
counsel to the Agent, in each case dated the date hereof, addressed to the Agent
and the Lenders with respect to customary matters and in form and substance
reasonably satisfactory to the Agent.

           

          (c)  The Agent
shall have received (i) a copy of the certificate of incorporation, including
all amendments thereto, of the Borrower, certified as of a recent date by the
Secretary of State of the state of Delaware, and a certificate as to the good
standing of the Borrower as of a recent date from such Secretary of State; (ii)
a certificate of the Secretary or an Assistant Secretary or analogous officer of
the Borrower, dated the date of this Agreement and certifying

          


          
            
              
                 


              

              
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          (A) that
attached thereto is a true and complete copy of the certificate of incorporation
of the Borrower as in effect on such date and at all times since a date prior to
the date of the resolutions described in clause (B) below, (B) that attached
thereto are true and complete copies of resolutions duly adopted by the Board of
Directors (or any duly authorized committee thereof), authorizing the execution
and delivery by the Borrower of this Agreement, the Advances to be made
hereunder and the performance by the Borrower of all of its obligations
hereunder, and that such resolutions have not been modified, rescinded or
amended and are in full force and effect, (C) that the certificate of
incorporation referred to in clause (i) above has not been amended since the
date of the last amendment thereto shown on the certificate of good standing
furnished pursuant to such clause (i) and (D) as to the incumbency and specimen
signature of each officer executing this Agreement and any other document
delivered in connection herewith on behalf of the Borrower; (iii) a certificate
of another officer of the Borrower as to the incumbency and specimen signature
of the Secretary or Assistant Secretary or analogous officer executing the
certificate pursuant to (ii) above; and (iv) a certificate of a Responsible
Officer of the Borrower, dated the date of this Agreement, stating that (A) no
action, consent or approval of, registration or filing with or other action by
any Governmental Authority is or will be required in connection with the
execution, delivery and performance by the Borrower of this Agreement, except
those as have been duly obtained and as are (1) in full force and effect, (2)
sufficient for their purpose and (3) not subject to any pending or, to the
knowledge of such Person, threatened appeal or other proceeding seeking
reconsideration or review thereof, and (B) the representations and warranties
set forth in Article III hereof are true and correct in all material respects on
and as of the date hereof, and (C) no Event of Default or Default has occurred
and is continuing on the date hereof.

           

          (d)  [Reserved.]

           

          (e)  The
Lenders, the Agent and the Lead Arranger shall have received payment of all fees
and reimbursements of all expenses for which invoices have been presented as and
when due on or prior to the date of the Initial Advance pursuant to the terms of
this Agreement or the Fee Letter.

           

          (f)  The Agent
shall have received all documentation and information required by regulatory
authorities under applicable “know your customer” and anti-money laundering
rules and regulations, including without limitation the USA Patriot Act (Title
III of Pub. L. 107-56 (signed into law October 26, 2001)).

           

          (g)  The Agent
shall have become party to the Collateral Agency and Intercreditor
Agreement.

           

          (h)  [Reserved.]

           

          (i)  The Agent
shall have determined, in consultation with its counsel, that the obligations of
the Borrower under this Agreement are secured ratably with the obligations of
Borrower under the Existing Facility Credit Agreement by the valid and perfected
lien on and security interest in the Collateral granted pursuant to the terms of
the Security Documents and the Collateral Agency and Intercreditor
Agreement.

          


          
            
              
                 


              

              
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          SECTION
4.02. 
Conditions for All
Advances.

           

          The
Commitment of each Lender to make each Advance hereunder shall be subject to the
satisfaction of the following conditions precedent on the date of such
Advance:

           

          (a)  The Agent
shall have received a Borrowing Notice.

           

          (b)  All
representations and warranties contained in or pursuant to this Agreement and
the other Credit Documents, or otherwise made in writing in connection herewith
or therewith, shall be true and correct in all material respects on and as of
the date of each Advance hereunder with the same effect as if made on and as of
such date (unless stated to relate to specific earlier date, in which case, such
representations and warranties shall be true and correct in all material
respects as of such earlier date) (it being understood that any representation
or warranty that is qualified as to materiality or Material Adverse Effect shall
be correct in all respects).

           

          (c)  At the
time of and immediately after such Advance, no Default or Event of Default shall
have occurred and be continuing at the time of such Advance or would result from
the making of such Advance.

           

          The
request by the Borrower for, and the acceptance by the Borrower of, each Advance
hereunder shall be deemed to be a representation and warranty by the Borrower
that the conditions specified in this Section 4.02 have been satisfied or waived
at that time.

           

          ARTICLE
V

           

          AFFIRMATIVE
COVENANTS

           

          The
Borrower agrees that, so long as any Lender has any Commitment hereunder or any
Advance or other amount is owing to any Lender or the Agent hereunder or under
any other Credit Document (other than contingent indemnification obligations for
which no claim has been asserted) the Borrower shall, and shall cause each of
the Restricted Subsidiaries to, directly or indirectly:

           

          SECTION
5.01. 
Financial
Statements, Etc.

           

          Deliver
to the Agent (for distribution to the Lenders):

           

          (a)  within
ninety (90) days (or, if agreed to under the Existing Facility Credit Agreement,
105 days) after the end of each fiscal year of the Borrower ending after the
Closing Date, a copy of the audited consolidated balance sheet of the Borrower
and its consolidated Subsidiaries as at the end of such year and the related
audited consolidated statements of income and of cash flows for such year,
setting forth in each case in comparative form the figures for the previous
year, reported on without a “going concern” or like qualification or exception,
or qualification arising out of the scope of the audit, by
PricewaterhouseCoopers or other independent certified public accountants of
nationally recognized standing; and

           

          (b)  within
forty-five (45) days (or if agreed to under the Existing Facility Credit
Agreement, sixty (60) days) after the end of each of the first three quarterly
fiscal periods of each

          


          
            
              
                 


              

              
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          fiscal
year, a copy of the unaudited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income in such quarter and of cash flows
for the portion of the fiscal year through the end of such quarter, setting
forth in each case in comparative form the corresponding consolidated figures
for the corresponding periods in the preceding fiscal year, accompanied by a
certificate of a Responsible Officer, which certificate shall state that such
consolidated financial statements fairly present, in all material respects, the
consolidated financial condition and results of operations of the Borrower and
its consolidated Subsidiaries, in accordance with GAAP, consistently applied, as
at the end of, and for, such period (subject to normal year-end audit
adjustments and the absence of footnotes).

           

          All such
financial statements delivered pursuant to subsections (a) and (b) above shall
be complete and correct in all material respects and shall be prepared in
reasonable detail and in accordance with GAAP applied consistently throughout
the periods reflected therein and with prior periods.  The Borrower
may provide the financial statements and other materials required to be
furnished pursuant to this Section by posting such financial statements and
materials on IntraLinks/IntraAgency, SyndTrak or other relevant website or other
information platform (the “Platform”)
to which the Agent has access.  If delivered to the Agent, the Agent
will provide the financial statements and other materials required to be
furnished pursuant to this Section to the Lenders by posting such financial
statements and materials on the Platform within five Business Days after receipt
thereof. Information required to be delivered pursuant to subsections (a) and
(b) above shall be deemed satisfied by delivery within the time periods set
forth in such subsections of the Borrower’s annual report on Form 10-K and
quarterly report on Form 10-Q, respectively, in each case as filed with the SEC
for the applicable period.

           

          SECTION
5.02. 
Certificates;
Other Information.

           

          Deliver
to the Agent and, in the case of clause (h) below, to the applicable
Lender:

           

          (a)  concurrently
with the delivery of the financial statements referred to in Section 5.01(a), a
certificate of the independent certified public accountants reporting on such
financial statements stating that in making the examination necessary thereof no
knowledge was obtained of any Default or Event of Default pursuant to Section
6.17 of the Existing Facility Credit Agreement, except as specified in such
certificate;

           

          (b)  concurrently
with the delivery of any financial statements pursuant to Section 5.01, (i) a
certificate of a Responsible Officer stating that such Responsible Officer has
obtained no knowledge of any Default or Event of Default except as specified in
such certificate (and if such certificate specifies any Default or Event of
Default has occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto) and (ii)
in the case of quarterly or annual financial statements, (x) a Compliance
Certificate containing all information and calculations necessary for
determining compliance by each Global Entity with Section 6.17 of this Agreement
as of the last day of the fiscal quarter or fiscal year of the Borrower, as the
case may be, and (y) to the extent not previously disclosed to the Agent, (1) a
description of any change in the jurisdiction of organization any Loan Party,
(2) a list of any material Intellectual Property acquired by any Loan Party and
(3) a description of any Person that has become a Global Entity, in each case
since the date of the most recent report delivered

          


          
            
              
                 


              

              
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          pursuant
to this clause (y) (or, in the case of the first such report so delivered, since
the Closing Date);

           

          (c)  as soon
as available, and in any event no later than 45 days after the end of each
fiscal year of the Borrower, a detailed consolidated budget for the following
fiscal year (including a projected consolidated balance sheet of the Borrower
and its Subsidiaries as of the end of the following fiscal year, the related
consolidated statements of projected cash flow, projected changes in financial
position and projected income and a description of the underlying assumptions
applicable thereto), and, as soon as available, significant revisions, if any,
of such budget and projections with respect to such fiscal year (collectively,
the “Projections”),
which Projections shall in each case be accompanied by a certificate of a
Responsible Officer stating that such Projections are based on reasonable
estimates, information and assumptions and that such Responsible Officer has no
reason to believe that such Projections are incorrect or misleading in any
material respect;

           

          (d)  concurrently
with the delivery of financial statements pursuant to Section 5.01, a narrative
discussion and analysis of the financial condition and results of operations of
the Borrower and its Subsidiaries for such fiscal quarter and for the period
from the beginning of the then current fiscal year to the end of such fiscal
quarter, as compared to the portion of the Projections covering such periods and
to the comparable periods of the previous year. Information required to be
delivered pursuant to this clause shall be deemed satisfied by delivery within
the time period set forth herein of the Borrower’s annual report on Form 10-K
and quarterly report on Form 10-Q, respectively, in each case as filed with the
SEC for the applicable period;

           

          (e)  no later
than five (5) Business Days prior to the effectiveness thereof, copies of
substantially final drafts of any material proposed amendment, supplement,
waiver or other modification with respect to any Subordinated Indebtedness
Agreement, any Junior Lien Agreement or the Bridge Loan Documents;

           

          (f)  within
five days after the same are sent, copies of all financial statements and
reports that the Borrower sends to the holders of any class of its debt
securities or public equity securities and, within five days after the same are
filed, copies of all financial statements and reports that the Borrower may make
to, or file with, the SEC;

           

          (g)  promptly
following the delivery thereof to any Loan Party or to the Board of Directors or
management of any Loan Party, a copy of any final management letter or report by
independent public accountants with respect to the financial condition,
operations or business of the Borrower and its Subsidiaries;

           

          (h)  promptly
upon request, such other material information (financial or otherwise), as may
be reasonably requested by the Agent (on behalf of itself or any Lender);
and

           

          (i)  concurrently
with the delivery of any document required to be delivered pursuant to Section
5.01 or this Section 5.02, the Borrower shall indicate in writing whether such
document contains non-public information.

          


          
            
              
                 


              

              
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          The
Borrower may provide the certificates and other information required to be
furnished pursuant to this Section 5.02 by posting such certificates and
information on the Platform to which the Agent has access. If delivered to the
Agent, the Agent will provide the certificates and other information required to
be furnished by the Borrower pursuant to this Section 5.02 to the Lenders by
posting such certificates and other information on the Platform within five
Business Days after receipt thereof.

           

          SECTION
5.03. 
Payment
of Obligations.

           

          Pay,
discharge or otherwise satisfy at or before maturity or before they become
delinquent, as the case may be, all its material obligations of whatever nature,
except (i) where the amount or validity thereof is currently being contested in
good faith by appropriate proceedings and reserves in conformity with GAAP with
respect thereto have been provided on the books of the relevant Global Entity or
(ii) where the failure to so pay, discharge or otherwise satisfy such
obligations could not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect.

           

          SECTION
5.04. 
Maintenance
of Existence; Compliance with Contractual Obligations and Requirements of
Law.

           

          (a)(i)
Preserve, renew and keep in full force and effect its organizational existence
and (ii) take all reasonable action to maintain all rights, privileges and
franchises reasonably necessary in the normal conduct of its business, except,
in each case, as otherwise permitted by Section 6.3 and except, in the case of
clause (ii) above, to the extent that failure to do so would not reasonably be
expected to have a Material Adverse Effect; and (b) comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to comply
therewith could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.

           

          SECTION
5.05. 
Maintenance
of Property; Insurance.

           

          (a) 
Keep all property useful and necessary in its business in good working order and
condition, subject to ordinary wear and tear and obsolescence and from time to
time make all needful and proper repairs, renewals, replacements, extensions,
additions, betterments and improvements thereto, to the extent and in the manner
useful or customary for companies in similar businesses, except where failure to
do so would not reasonably be expected to have a Material Adverse Effect and (b)
maintain with financially sound and reputable insurance companies insurance
policies (or where appropriate, self-insurance) on all its property in at least
such amounts and against at least such risks (but including in any event public
liability, product liability and business interruption) as are usually insured
against in the same general area by companies of a similar size engaged in the
same or a similar business.

           

          SECTION
5.06. 
Inspection
of Property; Books and Records; Discussions.

           

          (a) 
Keep proper books of records and account in which full, true and correct entries
in all material respects in conformity with GAAP and all Requirements of Law
shall be made of all dealings and transactions in relation to its business and
activities and (b) upon reasonable prior notice to the Borrower through the
Agent, permit representatives of the Agent or any Lender to visit and inspect
any of its properties and examine and make abstracts from any of its books
and

          


          
            
              
                 


              

              
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          records
at any reasonable time during normal business hours to discuss the business,
operations, properties and financial and other condition of the Global Entities
with officers and employees of the Global Entities and with their independent
certified public accountants and with their financial advisors; provided that so long
as no Event of Default has occurred and is continuing, the Lenders and the Agent
shall not be permitted to exercise such rights more than once per year, and the
exercise of such rights will be coordinated through the Agent on behalf of the
Lenders.  The Agent agrees to coordinate and consolidate visits
pursuant to this Section by Lenders and their representatives (including the
examination of books and records and the making of copies and abstracts of books
and records) at mutually convenient times and in such a manner so as to cause
minimum disruption to the operations of the Borrower and to minimize costs
associated with such visits.

           

          SECTION
5.07. 
Notices.

           

          Promptly,
and in any event within five (5) Business Days after a Responsible Officer
becomes aware thereof (except as otherwise provided in (e) below), give notice
to the Agent, with a copy for each Lender, of:

           

          (a)  the
occurrence of any Event of Default hereunder, or any event of default under the
Existing Facility Credit Agreement after the expiration of any applicable grace
or cure period;

           

          (b)  any (i)
default or event of default under any Contractual Obligation of any Global
Entity or (ii) litigation, investigation or proceeding that may exist at any
time between a Global Entity and any Governmental Authority, that in either
case, if not cured or if adversely determined, as the case may be, could
reasonably be expected to have a Material Adverse Effect;

           

          (c)  any
litigation or proceeding affecting any Global Entity (i) that would reasonably
be expected to have a Material Adverse Effect or (ii) which relates to any
Credit Document;

           

          (d)  any
development or event that has had or could reasonably be expected to have a
Material Adverse Effect;

           

          (e)  the
following events, as soon as practicable and in any event within 30 days after
any Global Entity knows or has reason to know thereof: (i) the occurrence of any
Reportable Event with respect to any Plan, a failure to make any required
contribution to a Plan, the creation of any Lien in favor of the PBGC or a Plan
or any withdrawal from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or the taking of any
other action by the PBGC or the Borrower or any Commonly Controlled Entity or
any Multiemployer Plan with respect to the withdrawal from, or the termination,
Reorganization or Insolvency of, any Plan, in the case of each of the foregoing
clauses (i) or (ii) where such event could reasonably be expected to have a
Material Adverse Effect; and

           

          (f)  any
amendments or modifications to the Existing Facility Credit
Agreement.

           

          Each
notice pursuant to this Section shall be accompanied or provided as soon as
practicable thereafter by a statement of a Responsible Officer setting forth
details of the

          


          
            
              
                 


              

              
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          occurrence
referred to therein and stating what action the relevant Global Entity has taken
or proposes to take with respect thereto.

           

          SECTION
5.08. 
Environmental
Laws.

           

          (a)  Comply
with, and take reasonable efforts to ensure compliance in all material respects
by all tenants and subtenants, if any, with, all applicable Environmental Laws,
and obtain and comply with and maintain, and ensure that all tenants and
subtenants obtain and comply in all material respects with and maintain, any and
all licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws except where the failure to comply with the
foregoing would not be reasonably be expected to give rise to a Material Adverse
Effect.

           

          (b)  Conduct
and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws except
where the failure to comply with the foregoing would not be reasonably be
expected to give rise to a Material Adverse Effect and promptly comply with all
lawful orders and directives of all Governmental Authorities under applicable
Environmental Laws except where the failure to do so would not be reasonably be
expected to give rise to a Material Adverse Effect; provided, however,
that the Borrower may use all lawful means to protest or challenge the
imposition by any Governmental Authority of any requirements under any such
lawful orders, directives or that otherwise arise under applicable Environmental
Laws.

           

          SECTION
5.09. 
Employee
Benefits.

           

          Comply
(and with respect to Plans covered by Title IV of ERISA, cause their respective
Commonly Controlled Entities to comply) in all material respects with the
applicable provisions of ERISA and the Code and other applicable laws, rules and
regulations with respect to any Plan, the failure of which could reasonably be
expected to result in a Material Adverse Effect.

           

          SECTION
5.10. 
Further
Assurances.

           

          (a)  With
respect to any property acquired after the Closing Date by any Loan Party (other
than any property described in paragraph (b), (c) or (d) below) as to which the
Collateral Agent, for the benefit of the Secured Parties, does not have a
perfected Lien, promptly (i) execute and deliver to the Existing Facility
Administrative Agent (with copies to the Agent hereunder) such amendments to the
Guarantee and Collateral Agreement or such other documents as the Existing
Facility Administrative Agent deems necessary or advisable to grant to the
Collateral Agent, for the benefit of the Secured Parties, a security interest in
such property and (ii) take all actions necessary or advisable to grant to the
Collateral Agent, for the benefit of the Secured Parties, a perfected first
priority security interest in such property, including the filing of Uniform
Commercial Code financing statements in such jurisdictions as may be required by
the Guarantee and Collateral Agreement or by law or as may be reasonably
requested by the  Existing Facility Administrative Agent.

           

          (b)  With
respect to any fee interest in any real property having a value (together with
improvements thereof) of at least $5,000,000 acquired after the Closing Date by
any Loan Party (other than any such real property subject to a Permitted Lien
which precludes the granting of a

          


          
            
              
                 


              

              
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          Mortgage
thereon), within sixty (60) days after the creation or acquisition thereof (i)
execute and deliver a first priority Mortgage or where appropriate under the
circumstances, an amendment to an existing Mortgage, in each case in favor of
the Collateral Agent, for the benefit of the Secured Parties, covering such real
property, (ii) if requested by the Existing Facility Administrative Agent,
provide the Secured Parties with (x) either (1) title insurance covering such
real property in an amount at least equal to the purchase price of such real
property (or such other amount as shall be reasonably specified by the Existing
Facility Administrative Agent) in form and substance reasonably satisfactory to
the Existing Facility Administrative Agent as well as a current ALTA survey
thereof, together with a surveyor’s certificate (only with respect to any power
plant or any other real property for which an ALTA survey was obtained when such
property was acquired) or (2) where an amendment to an existing Mortgage has
been delivered pursuant to clause (i) instead of a Mortgage, an endorsement to
the existing title policy adding such property as an insured parcel, and (y) any
consents or estoppels reasonably deemed necessary or advisable by the Existing
Facility Administrative Agent in connection with such Mortgage or Mortgage
amendment (to the extent obtainable using commercially reasonable efforts), each
of the foregoing in form and substance reasonably satisfactory to the Existing
Facility Administrative Agent and (iii) if requested by the Existing Facility
Administrative Agent, deliver to the Existing Facility Administrative Agent
legal opinions relating to the matters described above, which opinions shall be
in form and substance, and from counsel, reasonably satisfactory to the Existing
Facility Administrative Agent (provided that copies of all such items delivered
to the Existing Facility Administrative Agent shall be delivered to the Agent
hereunder and, if any opinions are delivered, they shall entitle the Agent
hereunder to rely thereon).

           

          (c)  With
respect to any new Subsidiary (other than an Excluded Subsidiary) created or
acquired after the Closing Date by any Global Entity (which, for the purposes of
this paragraph (c), shall include any existing Subsidiary that ceases to be an
Excluded Subsidiary), within sixty (60) days of the creation or acquisition
thereof (i) execute and deliver to the Existing Facility Administrative Agent
such amendments to the Guarantee and Collateral Agreement as
the  Existing Facility Administrative Agent deems necessary or
advisable to grant to the Collateral Agent, for the benefit of the Secured
Parties, a perfected first priority security interest in the Capital Stock of
such new Subsidiary that is owned by any Loan Party, (ii) deliver to the
Existing Facility Administrative Agent the certificates representing such
Capital Stock, together with undated stock powers, in blank, executed and
delivered by a duly authorized officer of the relevant Global Entity, (iii)
cause such new Subsidiary (A) to become a party to the Guarantee and Collateral
Agreement, (B) to take such actions necessary or advisable to grant to the
Collateral Agent for the benefit of the Secured Parties a perfected first
priority security interest in the Collateral described in the Guarantee and
Collateral Agreement with respect to such new Subsidiary, including the filing
of Uniform Commercial Code financing statements in such jurisdictions as may be
required by the Guarantee and Collateral Agreement or by law or as may be
requested by the Existing Facility Administrative Agent and (C) to deliver to
the Collateral Agent a certificate of such Subsidiary, substantially in the form
of Exhibit A to the Existing Facility Credit Agreement, with appropriate
insertions and attachments, and (iv) if requested by the Existing Facility
Administrative Agent, deliver to the Existing Facility Administrative Agent
legal opinions relating to the matters described above, which opinions shall be
in form and substance, and from counsel, reasonably satisfactory to the Existing
Facility Administrative Agent (provided that copies of all such items delivered
to the Existing Facility Administrative

          


          
            
              
                 


              

              
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          Agent
shall be delivered to the Agent hereunder and, if any opinions are delivered,
they shall entitle the Agent hereunder to rely thereon).

           

          (d)  With
respect to any new Foreign Subsidiary (or Domestic Subsidiary of the type
described in clause (d) of the definition of Excluded Subsidiary in the Existing
Facility Credit Agreement) created or acquired after the Closing Date by any
Loan Party, promptly (i) execute and deliver to the Existing Facility
Administrative Agent such amendments to the Guarantee and Collateral Agreement
as the Existing Facility Administrative Agent deems necessary or advisable to
grant to the Collateral Agent, for the benefit of the Secured Parties, a
perfected first priority security interest in the Capital Stock of such new
Subsidiary that is owned by any such Loan Party (provided that in no
event shall more than 65% of the total outstanding voting Capital Stock of any
such new Subsidiary be required to be so pledged), (ii) if commercially
reasonable, deliver to the Collateral Agent the certificates representing such
Capital Stock, together with undated stock powers, in blank, executed and
delivered by a duly authorized officer of the relevant Loan Party, and take such
other action as may be necessary or, in the opinion of the Existing Facility
Administrative Agent, desirable to perfect the Collateral Agent’s security
interest therein, and (iii) if requested by the Existing Facility Administrative
Agent, deliver to the Existing Facility Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Existing Facility
Administrative Agent (provided that copies of all such items delivered to the
Existing Facility Administrative Agent shall be delivered to the Agent hereunder
and, if any opinions are delivered, they shall entitle the Agent hereunder to
rely thereon).

           

          SECTION
5.11. 
First
Priority Lien.

           

          Cause the
Obligations of the Borrower under this Agreement to be secured ratably with the
obligations of the Borrower under the Existing Facility Credit Agreement by the
valid and perfected lien on and security interest in the Collateral granted
pursuant to the terms of Security Documents and the Collateral Agency and
Intercreditor Agreement.

           

          ARTICLE
VI

           

          NEGATIVE
COVENANTS

           

          The
Borrower agrees that, so long as any Lender has any Commitment hereunder or any
Advance or other amount is owing to any Lender or the Agent hereunder or under
any other Credit Document (other than contingent indemnification obligations for
which no claim has been asserted), the Borrower shall not, and shall not permit
any of the Restricted Subsidiaries to, directly or indirectly:

           

          SECTION
6.01. 
Limitation
on Indebtedness.

           

          Create,
issue, incur, assume, become liable in respect of or suffer to exist any
Indebtedness except:

           

          (a)  Indebtedness
of any Loan Party pursuant to this Agreement and the other Credit
Documents;

          


          
            
              
                 


              

              
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          (b)  Indebtedness
owed to any financial institution in respect of overdrafts and related
liabilities arising from treasury, depository or cash management services or in
connection with any automated clearing house transfers of funds;

           

          (c)  (i)
Indebtedness (including Guarantee Obligations) outstanding on January 31, 2008
and listed on Schedule 6.1(c) annexed to the Existing Facility Credit Agreement,
(ii) Indebtedness under the Blue Spruce Refinancing Facility and the Metcalf
Refinancing Facility, and (iii) any Refinancing of any such Indebtedness
referred to in clauses (i) and (ii), provided that as a
result of any such Refinancing (x) the principal amount of such Indebtedness
shall not be increased (except by the amount of premiums, penalties, accrued and
unpaid interest and fees and expenses associated with such Refinancing) (it
being understood that a Guarantee Obligation without a stated principal amount
or dollar limitation shall not be subject to the requirement of this clause (i)
so long as any Refinancing of such Guarantee Obligations shall be in respect of
obligations of substantially the same nature arising with respect to the same
project of the Borrower and its Subsidiaries), and (y) the final maturity of
such Indebtedness shall not be shortened;

           

          (d)  Indebtedness
of (i) the Borrower to any Subsidiary of the Borrower, (ii) any Guarantor to the
Borrower or any other Subsidiary of the Borrower, and (iii) any Subsidiary of
the Borrower that is not a Guarantor to any other Subsidiary of the Borrower
that is not a Guarantor; provided that if any
intercompany Indebtedness owed to the Borrower or any Subsidiary of the Borrower
by any Subsidiary of Calpine Energy Services Holdings, Inc. listed on Schedule
1.1F annexed to the Existing Facility Credit Agreement shall be represented by
an intercompany note or notes, such note or notes owed to any Loan Party shall
be pledged in favor of the Collateral Agent, for the benefit of the Lenders,
pursuant to the Security Documents;

           

          (e)  endorsements
of instruments in the ordinary course of business and consistent with past
practices of the Borrower and its Subsidiaries;

           

          (f)  Indebtedness
of any Global Entity arising in the ordinary course of business (and consistent
with past practice of the Borrower and its Subsidiaries) of such Global Entity
and owing with respect to netting agreements; provided that such
Indebtedness is promptly repaid or otherwise extinguished by such Global
Entity;

           

          (g)  Indebtedness
of any Global Entity consisting of the financing of insurance premiums in the
ordinary course of business (and consistent with past practices of the Borrower
and its Subsidiaries);

           

          (h)  Indebtedness
of any Global Entity consisting of take-or-pay obligations contained in supply
agreements entered into in the ordinary course of business of such Global Entity
(and consistent with past practices of the Borrower and its
Subsidiaries);

           

          (i)  Indebtedness
represented by appeal, bid, performance, surety or similar bonds, workers’
compensation claims, self-insurance obligations and bankers acceptances issued
for the account of any Global Entity, in each case to the extent incurred in the
ordinary course of business in accordance with customary industry practices in
amounts customary in the Borrower’s industry;

          


          
            
              
                 


              

              
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          (j)  (i)
Commodity Hedge Agreements and other Swap Agreements that are entered into (x)
in the ordinary course of business for a merchant energy company which has a
primary focus on operating and optimizing its physical assets and providing
related energy products to its customers and consistent with prudent business
practice to actively manage risks to which the Borrower and its Subsidiaries are
exposed in the conduct of their business or the management of their liabilities
and (y) consistent with applicable risk management guidelines established by the
Borrower from time to time and made available for review to the Agent on or
around the time of delivery of the quarterly financial statements of the
Borrower and its consolidated Subsidiaries pursuant to Section 5.01 hereof and
(ii) in connection with Swap Agreements entered into with VMAC Energy I, LLC,
associated reimbursement obligations, including with respect to letters of
credit, to providers of credit support for such Swap Agreements in amounts not
exceeding the notional amount of the Indebtedness outstanding under such Swap
Agreements;

           

          (k)  intercompany
Indebtedness of any Subsidiary of the Borrower to the Borrower or any other
Subsidiary of the Borrower not to exceed the amount of the Incremental Term
Loans made to the Borrower pursuant to the Existing Facility Credit Agreement or
the Junior Lien Indebtedness permitted to be incurred under Section 6.01(y), in
each case for the purposes and subject to the requirements set forth therein;
provided that
if such intercompany Indebtedness shall be represented by an intercompany note
or notes, such note or notes owed to any Loan Party shall be pledged in favor of
the Collateral Agent, for the benefit of the Lenders, pursuant to the Security
Documents (it being understood that any such Indebtedness of one Subsidiary
representing the same amount that is loaned by such Subsidiary to the Borrower
or another Subsidiary for such purposes shall not be “double counted” under this
clause (k));

           

          (l)  intercompany
Indebtedness of any Subsidiary of the Borrower to the Borrower or any other
Subsidiary of the Borrower consisting of the Investments permitted under
Sections 6.06(c), (h), (i), (k), (m) and (n); provided that if such
intercompany Indebtedness shall be represented by an intercompany note or notes,
such note or notes owed to any Loan Party shall be delivered to the Collateral
Agent (it being understood that any such Indebtedness of one Subsidiary
representing the same amount that is loaned by such Subsidiary to the Borrower
or another Subsidiary for such purposes shall not be “double counted” under this
clause (l));

           

          (m)   
 (i)
Indebtedness of the Borrower in respect of the Bridge Loan Facility in an
aggregate principal amount not to exceed $300,000,000 and (ii) Guarantee
Obligations of any Subsidiary of the Borrower in respect of such Indebtedness,
and (iii) any Permitted Refinancing thereof;

           

          (n)  Indebtedness
with respect to (i) any Eligible Commodity Hedge Financing and (ii) any
Unsecured Commodity Liquidity Facility;

           

          (o)  Guarantee
Obligations incurred in the ordinary course of business and consistent with past
practices of the Borrower in respect of the obligations of any Guarantor
incurred in the ordinary course of business of such Guarantor, or of any
Guarantor of the obligations of the Borrower or any other
Guarantor;

           

          (p)  Guarantee
Obligations (including the issuance of letters of credit) set forth on Schedule
6.1(p) to the Existing Facility Credit Agreement to the extent, for the purpose
and up to

          


          
            
              
                 


              

              
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          the
amount set forth on such Schedule (it being understood that amounts allocated to
a Project set forth on such Schedule but not utilized on account of such Project
may be utilized with respect to the other Projects set forth on such
Schedule);

           

          (q)   
 Guarantee
Obligations of the Borrower and its Subsidiaries in the form of Performance
Guarantees in respect of Projects for which Project Investments are permitted
under Section 6.06(m); provided that (i) the
terms of any such Guarantee Obligation shall be consistent with past practices
of the Borrower and its Subsidiaries, and (ii) in no event shall any such
Guarantee Obligation be secured by Collateral;

           

          (r)  (i)
Capital Lease Obligations and (ii) Indebtedness of the Borrower or any
Subsidiary incurred to finance all or any part of the acquisition, lease,
construction, installation or improvement of any assets, and any refinancing,
replacement, refunding, renewal or extension of any such Indebtedness without
any increase thereof, so long as such Indebtedness is initially created, issued,
incurred or assumed prior to or within the ninety (90) days after the completion
of such acquisition, lease, construction, installation or improvement in an
aggregate amount not to exceed $150,000,000 at any one time
outstanding;

           

          (s)  Indebtedness
incurred by the Borrower or any of its Subsidiaries in the ordinary course of
business of the Borrower or such Subsidiary to any vendor of assets to finance
the acquisition of such assets so long as the only recourse of such vendor is to
the assets so financed;

           

          (t)  (i)
[Reserved], (ii) Indebtedness of the Borrower in respect of any other
Subordinated Indebtedness, so long as (w) at the time of incurrence thereof the
Borrower and its Restricted Subsidiaries shall be in pro forma compliance with
the covenants set forth in Section 6.17 immediately after giving effect to the
incurrence of such Indebtedness, (x) the terms and conditions of such
Indebtedness set forth in the Subordinated Indebtedness Agreement shall not be
more restrictive than the terms and conditions set forth in this Agreement, (y)
the maturity date of such Indebtedness shall not occur earlier than six months
after the Stated Maturity and (z) immediately prior to and immediately after
giving effect to the incurrence of such Indebtedness, no Default or Event of
Default shall have occurred and be continuing, (iii) Guarantee Obligations of
any Guarantor in respect of such Indebtedness described in the foregoing clauses
(i) and (ii), provided that such
Guarantee Obligations and the Liens in respect thereof are subordinated to the
Obligations and the Liens in respect hereof to the same extent as the
obligations of the Borrower in respect of the Subordinated Indebtedness or
Junior Lien Indebtedness, as the case may be, and the Liens in respect thereof
and (iv) any Permitted Refinancing of such Indebtedness described in the
foregoing clauses (i), (ii) and (iii);

           

          (u)  Limited
Recourse Debt with respect to any Project or Projects and Guarantee Obligations
consisting of Performance Guarantees in respect of the obligations of
Subsidiaries in respect of such Project or Projects; provided that (i) the
terms of any such Guarantee Obligation shall be generally consistent with past
practices of the Borrower and its Subsidiaries, and (ii) in no event shall any
such Guarantee Obligation be secured;

           

          (v)  Indebtedness
of any Person that becomes a Subsidiary after the date hereof pursuant to (x) a
Permitted Acquisition or (y) an Investment permitted under Section 6.06(s) which
is recourse only to the assets acquired pursuant to such Investment and, after
giving effect

          


          
            
              
                 


              

              
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          to such
Investment, the Borrower and its Restricted Subsidiaries are in pro forma
compliance with Section 6.17 (provided that such
Indebtedness exists at the time such Person becomes a Subsidiary and is not
created in contemplation of or in connection with such Person becoming a
Subsidiary), and any Refinancing of any such Indebtedness, provided that (i) the
principal amount of such Indebtedness shall not be increased (except by the
amount of premiums, penalties, accrued and unpaid interest, and fees and
expenses associated with such Refinancing), and (ii) the final maturity of such
Indebtedness shall not be shortened;

           

          (w)  
  intercompany
Indebtedness of Subsidiaries which have not emerged from the Cases to the
Borrower or any of its Subsidiaries (other than other Subsidiaries which have
not emerged from the Cases) to the extent such Indebtedness is permitted under
Section 6.06(r); provided that upon
emergence of any such Subsidiary from its Case, the Indebtedness owed to any
such Subsidiary shall have been repaid in full;

           

          (x)  
  (i)
senior unsecured Indebtedness of the Global Entities, so long as (w) at the time
of incurrence thereof the Borrower and its Restricted Subsidiaries shall be in
pro forma compliance with the covenants set forth in Section 6.17 immediately
after giving effect to the incurrence of such Indebtedness, (x) the terms and
conditions of such Indebtedness set forth in the agreement governing such
Indebtedness shall not be more burdensome than the terms and conditions set
forth in this Agreement, (y) the maturity date of such Indebtedness shall not
occur less than six months after the Stated Maturity, (z) immediately prior to
and immediately after giving effect to the incurrence of such Indebtedness, no
Default or Event of Default shall have occurred and be continuing, (ii) any
Permitted Refinancing of such Indebtedness and (iii) Disqualified Capital Stock
of the Global Entities;

           

          (y)  
  (x)
Junior Lien Indebtedness of the Loan Parties, so long as (i) the aggregate
principal amount of such Indebtedness shall not exceed $1,000,000,000 at any one
time outstanding, (ii) the proceeds of such Indebtedness shall be applied to (x)
repay or redeem secured debt, secured lease obligations or preferred securities
of any Project Subsidiary so long as the Collateral Requirements are satisfied
at the time of incurrence thereof or (y) finance the construction of new power
plants by the Borrower or the Restricted Subsidiaries so long as such power
plants are pledged as Collateral, (iii) the Borrower and its Restricted
Subsidiaries shall be in pro forma compliance with the covenants set forth in
Section 6.17 immediately after giving effect to the incurrence of such
Indebtedness, (iv) the terms and conditions of such Indebtedness set forth in
the Junior Lien Agreement shall not be more restrictive than the terms and
conditions set forth in this Agreement, (v) the maturity date of such
Indebtedness shall not occur earlier than six months after the Stated Maturity
and (vi) immediately prior to and immediately after giving effect to the
incurrence of such Indebtedness, no Default or Event of Default shall have
occurred and be continuing, (y) Guarantee Obligations of any Guarantor in
respect of such Indebtedness described in the foregoing clause (x), provided that such
Guarantee Obligations and the Liens in respect thereof are subordinated to the
Liens in respect hereof to the same extent as the obligations of the Borrower in
respect of the Junior Lien Indebtedness and the Liens in respect thereof and (z)
any Permitted Refinancing of such Indebtedness described in the foregoing
clauses (x) and (y);

           

          (z)   
 Guarantee
Obligations of the Borrower and its Subsidiaries in respect of (i) the Freeport
Guaranty, (ii) the Greenfield Guaranty, (iii) the CCFC Guaranty, (iv) the
Pittsburg/

          


          
            
              
                 


              

              
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          DEC/LMEC
Guaranty and (v) the Pasadena Guaranty; provided that in no
event shall any such Guarantee Obligation be secured;

           

          (aa)   
up to
$50,000,000 of other Guarantee Obligations of the Loan Parties;

           

          (bb)   
up to
$100,000,000 of other unsecured Indebtedness and/or other unsecured Guarantee
Obligations of the Loan Parties; and

           

          (cc)   
Indebtedness
of any Loan Party pursuant to the Existing Facility Credit Agreement and the
other “Loan Documents” (as defined in the Existing Facility Credit
Agreement).

           

          SECTION
6.02. 
Limitation
on Liens.

           

          Create,
incur, assume or suffer to exist any Lien upon any of its property, whether now
owned or hereafter acquired, except for:

           

          (a)  (i) Liens
existing on January 31, 2008 and listed on Schedule 6.02(a) annexed to the
Existing Facility Credit Agreement; (ii) Liens securing the Blue Spruce
Refinancing Facility and the Metcalf Refinancing Facility, provided that in each
case the Liens securing such obligations shall attach only to the assets that
were subject to Liens securing the obligations refinanced, replaced, refunded,
renewed or extended by the Blue Spruce Refinancing Facility or the Metcalf
Refinancing Facility, as applicable; and (iii) Liens on assets of the Borrower
or any Subsidiary securing obligations permitted to be incurred by this
Agreement that are incurred to refinance, replace, refund, renew or extend
obligations (and obligations refinancing such obligations, the extent such
refinancings are permitted by this Agreement) secured by Liens listed on
Schedule 6.02(a) to the Existing Facility Credit Agreement, provided that in each
case the Liens securing such obligations shall attach only to the assets that
were subject to Liens securing the obligations so refinanced, replaced,
refunded, renewed or extended;

           

          (b)  carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlords’ or other
similar Liens arising in the ordinary course of business which in the aggregate
do not materially detract from the value of the property or assets or materially
impair the use thereof in the operation of the business of the Borrower and its
Subsidiaries are not overdue for a period of more than ninety (90) days or which
are being contested in good faith by appropriate proceedings and for which
adequate reserves with respect thereto are maintained on the books of the
Borrower or the affected Global Entity, as the case may be, in accordance with
GAAP;

           

          (c)  Liens
imposed by any Governmental Authority for taxes, assessments or charges not yet
due or that are being contested in good faith and by appropriate proceedings if
adequate reserves with respect thereto are maintained on the books of the
Borrower or the affected Global Entity, as the case may be, in accordance with
GAAP;

           

          (d)  deposits
to secure the performance of bids, trading contracts (other than for borrowed
money), leases, statutory obligations, surety and appeal bonds, performance
bonds, and other obligations of a like nature incurred in the ordinary course of
business; provided that, for
the avoidance of doubt, Liens (including without limitation rights of set-off)
on (i) deposits and (ii) revenues under trading contracts, in each case in favor
of counterparties under such trading

          


          
            
              
                 


              

              
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          contracts
and other obligations incurred in the ordinary course of business (including
trading counterparties, brokerages, clearing houses, utilities, systems
operators and similar entities) shall be permitted and shall be permitted to be
first priority Liens on such collateral;

           

          (e)    
easements,
rights-of-way, restrictions, zoning ordinances and other similar encumbrances
incurred in the ordinary course of business which, are not substantial in amount
and which do not in any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct of the
business of the Global Entities;

           

          (f)    
 Liens
granted pursuant to the “Loan Documents” (as defined in the Existing Facility
Credit Agreement) and the Credit Documents;

           

          (g)   
Liens
incurred or deposits made in the ordinary course of business in connection with
workers’ compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory obligations, surety
and appeal bonds, bids, government contracts, performance and return-of-money
bonds and other similar obligations incurred in the ordinary course of business
(exclusive of obligations in respect of the payment for borrowed
money);

           

          (h)   
Liens
arising from precautionary Uniform Commercial Code financing statements
regarding operating leases or Capital Leases permitted under this
Agreement;

           

          (i)   
  any
interest or title of a licensor, lessor or sublessor under any lease permitted
by this Agreement;

           

          (j) 
    Liens
arising from judgments, decrees or attachments to the extent not constituting an
Event of Default under Article 7(g);

           

          (k)    
licenses,
leases or subleases granted to third parties not interfering in any material
respect with the business of any Global Entity;

           

          (l)  
   Liens of
sellers of goods, gas or oil to any Global Entity arising under Article 2 of the
Uniform Commercial Code or under other state statutes in the ordinary course of
business, covering only the goods, gas or oil sold and covering only the unpaid
purchase price for such goods, gas or oil and related expenses;

           

          (m)    
banker’s
liens and similar liens (including rights of set-off) in respect of bank
deposits;

           

          (n)    
first
priority Liens on the Collateral to secure (i) Specified Swap Agreements, (ii)
Eligible Commodity Hedge Agreements so long as the counterparty to any such
Eligible Commodity Hedge Agreement becomes a party to, or consents or agrees to
be bound by the terms and conditions of, the Collateral Agency and Intercreditor
Agreement and (iii) Eligible Commodity Hedge Financings, so long as the lenders
thereunder (or their representative(s) on their behalf) become a party to, or
consent or agree to be bound by the terms and conditions of, the Collateral
Agency and Intercreditor Agreement;

          


          
            
              
                 


              

              
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          (o)  Liens on
the property or assets of any Subsidiary of the Borrower in favor of the
Borrower or any other Loan Party;

           

          (p)    
Liens on
assets of any Subsidiary of the Borrower or Project Subsidiary and/or on the
Capital Stock of such Subsidiary or Project Subsidiary, in each case to the
extent such Liens secure Limited Recourse Debt permitted under Section 6.01(u)
or other Limited Recourse Debt permitted by this Agreement;

           

          (q)  Liens
arising in the ordinary course of business to secure liability (in an amount not
in excess of the premium for such insurance) for premiums to insurance
carriers;

           

          (r)  any Lien
existing on any property or asset prior to the acquisition thereof (or the
acquisition of, or merger or consolidation with, the Person owning such property
or asset) by the Borrower or any Subsidiary, and any Lien securing obligations
incurred to refinance, replace, refund, renew or extend the obligations secured
by such Liens, provided that in each
case (i) such Lien is not created in contemplation or in connection with such
acquisition, (ii) such Lien does not apply to any other property or assets of
the Borrower or any Subsidiary (other than fixtures and improvements on any such
real property), and (iii) the principal amount of any Indebtedness secured by
such Liens shall not be increased (except by the amount of premiums, penalties,
accrued and unpaid interest, fees and expenses associated with such Refinancing
permitted hereunder);

           

          (s)  Liens
securing Capital Lease Obligations and other Indebtedness permitted under
Section 6.01(r), so long as (i) such Liens are initially created or arise prior
to or within the ninety (90) days after the completion of such acquisition,
lease, construction, installation or improvement and (ii) such Liens do not
attach to assets of the Borrower or any Subsidiary other than the relevant
assets acquired, leased, constructed, installed or improved;

           

          (t)  utility
and similar deposits made by the Borrower or its Subsidiaries in the ordinary
course of business (consistent with past practices of such Borrower or
Subsidiary);

           

          (u)  good
faith deposits made in connection with Permitted Acquisitions and Investments
permitted hereunder;

           

          (v)    
Liens on
all or substantially all of the assets of any Bankrupt Subsidiary which has not
emerged from its Case to the extent such Liens secure the obligations of such
Bankrupt Subsidiaries under loans made to them and permitted under Section
6.06(r); provided that such
Liens shall be terminated and released as of the date that such Subsidiary
emerges from its Case;

           

          (w)   
Liens
securing (i) the Indebtedness and other obligations under the Bridge Loan
Facility permitted to be incurred pursuant to Section 6.01(m) so long as such
Liens are subject to the Collateral Agency and Intercreditor Agreement and (ii)
Junior Lien Indebtedness incurred in connection with the Plan of Reorganization
(to the extent permitted under Section 6.01(t)) or permitted to be incurred
under Section 6.01(y) and, in each case, any Permitted Refinancing
thereof;

           

          (x)  other
Liens securing Indebtedness or other obligations in an aggregate amount secured
by all such Liens not to exceed $100,000,000 at any one time
outstanding;

          


          
            
              
                 


              

              
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          (y)  Permitted
PPA Counterparty Liens, subject to a PPA Intercreditor Agreement, on not more
than three (3) Eligible Facilities at any one time; and

           

          (z)  Liens
securing the CalGen Makewhole Payment, if any.

           

          SECTION
6.03. 
Prohibition
on Fundamental Changes.

           

          Enter
into any merger, consolidation or amalgamation, or acquire all or substantially
all of the assets or Capital Stock of any other Person, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
lease, assign, transfer or otherwise dispose of, all or substantially all of its
property, business or assets or make any material change in its present method
of conducting business (it being acknowledged that changes to the operating and
internal management structure of the Borrower, such as the merger of certain
business divisions or the consolidation of certain management functions within
the Loan Parties, shall not constitute a material change in the method of
conducting business), except that the following shall be permitted:

           

          (a)  any
Global Entity other than the Borrower may be merged or consolidated with any
other Guarantor so long as the surviving entity of such merger is a Guarantor or
a new Subsidiary which, substantially concurrently with such merger or
consolidation, becomes a Guarantor in accordance with Section
5.10(c);

           

          (b)  any
Global Entity may be merged or consolidated with the Borrower if the surviving
entity of such merger is the Borrower;

           

          (c)  any of
the Borrower’s Foreign Subsidiaries may be merged or consolidated with another
Foreign Subsidiary;

           

          (d)  (i) any
Restricted Subsidiary may dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or any Guarantor or to any new
Subsidiary which, substantially concurrently with such transfer, becomes a
Guarantor in accordance with Section 5.10(c); (ii) any Subsidiary that is not a
Loan Party may dispose of any or all of its assets (upon voluntary liquidation
or otherwise) to any Loan Party; and (iii) any Subsidiary that is not a Loan
Party may be merged or consolidated with, or dispose of any or all of its assets
(upon voluntary liquidation or otherwise) to, any other Subsidiary that is not a
Loan Party;

           

          (e)  the
liquidation of the Philadelphia Biogas Supply, Inc., Calpine Capital Trust I,
Calpine Capital Trust II and Calpine Capital Trust III to the extent such
Subsidiaries do not own any assets or property or the assets or property of such
Subsidiaries are distributed to a Loan Party;

           

          (f)  any
Disposition permitted under Section 6.04 or any transaction (including creation
of any new Subsidiary and Investments permitted under Section 6.06(n))
reasonably necessary to consummate any Disposition permitted under Section 6.04
or to optimize the tax benefits or minimize the adverse tax consequences of any
such Disposition;

           

          (g)  any
Permitted Acquisition;

          


          
            
              
                 


              

              
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          (h)  any
acquisition of assets or Capital Stock solely in exchange for the issuance of
Capital Stock (other than Disqualified Capital Stock) of the Borrower;
and

           

          (i)      
with the
prior written consent of the Existing Facility Administrative Agent (which
consent shall not be unreasonably withheld), mergers, consolidations or
liquidations not otherwise permitted above of any Global Entity or any of its
Subsidiaries that is inactive or has de minimis assets.

           

          SECTION
6.04. 
Limitation
on Sale of Assets.

           

          Dispose
of any of its property, whether now owned or hereafter acquired, or, in the case
of a Subsidiary of the Borrower, issue or sell any shares of such Subsidiary’s
Capital Stock to any Person except:

           

          (a)  the sale,
liquidation, lease or other Disposition of (A) Cash Equivalents or inventory in
the ordinary course of business, (B) uneconomical, obsolete, surplus or worn out
property or (C) property that is no longer used or useful in the
business;

           

          (b)  the
consumption or use of fuel supplies, or other consumables, the conversion of
fossil, geothermal or other assets to power or the distribution, sale or trading
of power (including without limitation, steam or electrical power) and natural
gas or other fuels or the sale or trading of emissions credits, in each case in
the ordinary course of business and consistent with the past practices of the
Borrower and its Subsidiaries;

           

          (c)  exchange
or trade-in, or sale and application of proceeds to or for replacement assets to
be used in the business;

           

          (d)  the
discount or write-off of accounts receivable overdue by more than ninety (90)
days or the sale of any such accounts receivable for the purpose of collection,
in each case by any Global Entity in the ordinary course of
business;

           

          (e)  termination
of leases, surrender or sublease of real or personal property by any Global
Entity in the ordinary course of business;

           

          (f)      
incurrence
of Liens permitted under Section 6.02;

           

          (g)  transactions
permitted under clauses (a) through (e) and (h) in Section 6.03;

           

          (h)  the
Disposition of (i) the turbines listed on Schedule 6.04(h) annexed to the
Existing Facility Credit Agreement and (ii) turbine parts and components to the
Borrower or any of its Subsidiaries for use as spare or replacement
parts;

           

          (i)  the
Disposition of property or assets (including Capital Stock) in arm’s length
transactions at fair market value for which 75% of the consideration (excluding
any Indebtedness assumed in connection with such Disposition) received is in
cash or Cash Equivalents; provided that prior
to the execution of a legally binding agreement to consummate any such
Disposition, if such Disposition would result in (x) more than two gas-fired
power plants with a combined fair market value in excess of $500,000,000 being
Disposed of pursuant to this clause (i) in any fiscal

          


          
            
              
                 


              

              
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          year of
the Borrower, (y) property being Disposed of pursuant to this clause (i) with a
fair market value exceeding $500,000,000 in any fiscal year of the Borrower and
including not less than two gas-fired power plants, or (z) Disposition pursuant
to this clause (i) of all or substantially all of the assets of the Geysers
Entities, the Borrower shall have received written confirmation from each of
S&P and Moody’s that the credit ratings assigned by such entities to the
“Loans” (as defined in the Existing Facility Credit Agreement) shall be no lower
than the ratings assigned by S&P and Moody’s, as the case may be, to the
“Loans” (as defined in the Existing Facility Credit Agreement) immediately prior
to the time that S&P and Moody’s, as the case may be, shall have become
aware of such proposed Disposition, the use of the proceeds thereof and all
transactions related thereto, in each case after giving effect to such
Disposition, the use of the proceeds thereof and all transactions related
thereto; provided further,
however, that the fair market value of any property, to the extent the Net Cash
Proceeds from the Disposition of such property were applied to repay the Bridge
Loans, and any Project so Disposed of shall, in each case, be excluded from any
calculation (under the preceding proviso) of the combined fair market value of
property (and the number of gas-fired power plants) Disposed of or being
Disposed of;

           

          (j)      
Investments
permitted under Section 6.06; and

           

          (k)  the
trading and sharing of parts and components for equipment, tools and
non-material equipment, among the Borrower and its Subsidiaries, consistent with
past practices of the relevant Persons, including for purposes of spare or
replacement parts.

           

          SECTION
6.05. 
Limitation
on Issuances of Capital Stock and Dividends.

           

          Declare
or pay any dividend (other than dividends payable solely in Capital Stock (other
than Disqualified Capital Stock) of the Person making such dividend) on, or make
any payment on account of, or set apart assets for a sinking or other analogous
fund for, the purchase, redemption, defeasance, retirement or other acquisition
of, any Capital Stock of any Global Entity, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of any Global
Entity (collectively, “Restricted
Payments”), except that (i) the Borrower and its Subsidiaries may make
Restricted Payments to Persons pursuant to the Plan of Reorganization, (ii) the
Borrower may repurchase its Capital Stock owned by employees, directors or
officers (or former employees, directors or officers or their transferees,
estates or beneficiaries under their estates) of the Borrower or the
Subsidiaries or make payments relating to such repurchase of Capital Stock to
employees of the Borrower or the Subsidiaries in accordance with any stock
ownership plan or upon termination of such employees, (iii) so long as no
Default or Event of Default then exists or would exist after giving effect
thereto, the Borrower may, if at the end of the most recently ended fiscal
quarter for which financial statements have been delivered pursuant to Section
5.01 the Consolidated Leverage Ratio was not greater than 2.00 to 1.00, make
Restricted Payments in an aggregate amount during the term of this Agreement not
to exceed the sum of the portion of Excess Cash Flow for all fiscal years ending
after the Closing Date that is not required to be applied to repay the Advances
in accordance with Section 2.05, plus 100% of Unrestricted cash and Unrestricted
Cash Equivalents of the Global Entities on hand as of the Closing Date (after
giving effect to all cash payments and distributions made or to be made pursuant
to the Plan of Reorganization) and (iv) any Subsidiary of the Borrower may make
Restricted Payments otherwise permitted hereunder to holders of its Capital
Stock.

          


          
            
              
                 


              

              
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          SECTION
6.06. 
Limitation
on Investments, Loans and Advances.

           

          Make any
advance, loan, extension of credit (by way of guarantee or otherwise) or capital
contribution to, or purchase any stock, bonds, notes, debentures or other
securities of or any assets constituting a business unit of, or make any other
investment (each, an “Investment”,
it being understood that the amount of any Investment shall be the original cost
of such Investment, plus the cost of all additions thereto, without adjustments
for increases or decreases in value, or write-ups, write-downs or write-offs
with respect to such Investment, but deducting therefrom the amount of any cash
repayments or distributions received on account of such Investment by the Person
making such Investment) in, any Person, except:

           

          (a)  Investments
in Cash Equivalents;

           

          (b)  Indebtedness
permitted under Sections 6.01(c), (d), (n), (o), (p), (q), (r), (s), (t) and
(u);

           

          (c)  intercompany
Investments (i) by any Loan Party in the Borrower or another Loan Party that,
after giving effect to such Investment, is a Guarantor or (ii) listed on
Schedule 6.6(c) annexed to the Existing Facility Credit Agreement which may be
expended at any time during the term of this Agreement;

           

          (d)  Investments
(including debt obligations) received in good faith in connection with (i) the
bankruptcy or reorganization of suppliers, customers and other account debtors
or (ii) settlement or resolution of (or as a result of foreclosure with respect
to) delinquent obligations of, and other disputes with, customers, suppliers and
other account debtors;

           

          (e)  deposits
of the type described in Sections 6.02(d), (g), (t) and (u);

           

          (f)      
intercompany
Investments among the Global Entities which are not Loan Parties in the ordinary
course of business;

           

          (g)  loans and
advances, in each case in the ordinary course of business, by a Global Entity to
employees of such Global Entity (including for moving, relocation, entertainment
and travel expenses and other similar expenses, in each case incurred in the
ordinary course of business and consistent with past practices of the Borrower
and its Subsidiaries);

           

          (h)  Investments
consisting of amounts that are applied to make Capital Expenditures permitted
under Section 6.15;

           

          (i)      
Investments
in the Borrower or any of its Subsidiaries constituting Dispositions permitted
under Section 6.04 (other than Section 6.04(i));

           

          (j)      
Investments
consisting of letters of credit issued for the account of Non-Loan Parties
listed on Schedule 6.06(j) annexed to the Existing Facility Credit Agreement for
the purpose and up to the amount for each such letter of credit described on
such Schedule (it being understood that amounts allocated to a Project set forth
on such Schedule but not utilized on account of such Project may be utilized
with respect to the other Projects set forth on such Schedule);

          


          
            
              
                 


              

              
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          (k)  Investments
in any Subsidiary (whether directly or indirectly through any other Subsidiary
of the Borrower) identified on Schedule 6.06(k) annexed to the Existing Facility
Credit Agreement for the purposes and up to the amount for each such Investment
described on such Schedule (it being understood that amounts allocated to a
Project set forth on such Schedule but not utilized on account of such Project
may be utilized with respect to the other Projects set forth on such Schedule
and it being further understood that any such Investment in one Subsidiary
representing the same amount that is invested by such Subsidiary in another
Subsidiary for such purposes shall not be “double counted” under this clause
(k));

           

          (l)      
intercompany
Investments by the Borrower in any Subsidiary of the Borrower or by any
Subsidiary of the Borrower to another Subsidiary of the Borrower not to exceed
the amount of the Incremental Term Loans made to the Borrower pursuant to the
Existing Facility Credit Agreement and the Junior Lien Indebtedness permitted to
be incurred pursuant to Section 6.01(y), in each case for the purposes and
subject to the requirements set forth therein (it being understood that any such
Investment in any Subsidiary of the Borrower representing the same amount that
is invested by such Subsidiary in another Subsidiary of the Borrower for such
purposes shall not be “double counted” under this clause (l));

           

          (m)   
Investments
in any Subsidiary consisting of amounts invested in Project Investments and
letters of credit issued to support obligations of Subsidiaries in connection
with Project Investments; provided that the
aggregate amount of all such Investments by Loan Parties in Subsidiaries that
are not Loan Parties after the Closing Date, together with the amount of
Investments constituting Investments outstanding pursuant to Section 6.06(n)(i),
net of any such Investments that have theretofore been reimbursed after the
Closing Date to the Loan Parties, shall not exceed on any date of determination
an amount equal to (i) $100,000,000 multiplied by the number of anniversaries of
the Closing Date that have occurred prior to such date of determination, plus
(ii) the amount of any Excess Cash Flow or the Net Cash Proceeds from the
issuance of Capital Stock by any Loan Party that is required to be offered, but
not accepted by the Existing Facility Lenders, as a prepayment of the First
Priority Term Loans pursuant to the Existing Facility Credit Agreement and
actually applied to Project Investments or (with respect to determinations of
whether letters of credit may be issued under this clause (m)) not already
applied or expended for Investments under Section 6.06(h), (k), (m), (n), (r) or
(s); provided
that any Investments made in a Guarantor consisting of amounts applied to
Project Investments that are not already counted against the amount of
Investments in a Subsidiary permitted to be made under this clause (m) shall be
counted as Investments made under this clause (m) at and after such time that
such Loan Party ceases to be a Guarantor (it being understood that any such
Investment in any Subsidiary of the Borrower representing the same amount that
is invested by such Subsidiary in another Subsidiary of the Borrower for such
purposes shall not be “double counted” under this clause (m));

           

          (n)     Investments
(i) in any Subsidiary consisting of amounts invested in Permitted Acquisitions
so long as such Investments do not exceed the aggregate amounts set forth in the
proviso to Section 6.06(m) or (ii) consisting of any acquisition permitted under
Section 6.03(h);

           

          (o)    
Investments
consisting of non-cash consideration permitted to be received in connection with
Dispositions permitted under Section 6.04;

          


          
            
              
                 


              

              
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          (p)    
Investments
of property or assets of a Global Entity to any of its Subsidiaries to the
extent reasonably necessary to consummate any Disposition of such property or
assets (or of the Capital Stock of the Person holding such property or assets)
permitted under Section 6.04 or to optimize the tax benefits or minimize the
adverse tax consequences of any such Disposition so long as the Net Cash
Proceeds of any such Disposition are applied to prepay the First Priority Term
Loans to the extent required by the Existing Facility Credit
Agreement;

           

          (q)   
Investments
of property or assets of a Global Entity into any of its Subsidiaries (whether
by loan or equity contribution), so long as such property or assets are dormant
and unused in the business of the Global Entity making such Investment due to
applicable laws affecting such Global Entity’s ability to use such property or
assets;

           

          (r)    
Investments
consisting of intercompany loans to the Bankrupt Subsidiaries, so long as (i)
the proceeds of such loans are applied to working capital, maintenance,
operation, payroll and other liquidity requirements in the ordinary course of
business of such Subsidiaries, and (ii) the aggregate amount of such
intercompany loans to such Bankrupt Subsidiaries shall not exceed $25,000,000 at
any time outstanding; provided that the
Bankruptcy Court shall have entered an order providing that such loans to any
such Bankrupt Subsidiary are entitled to superpriority claim status under
Section 364(c)(1) of the Bankruptcy Code in the Case of such Bankrupt Subsidiary
and are secured by Liens on all or substantially all of assets of such Bankrupt
Subsidiary granted under Section 364(c)(2) and (3) of the Bankruptcy Code;
and

           

          (s)    
in
addition to Investments permitted under clauses (a) through (r) above,
additional Investments by the Borrower or any of its Subsidiaries in an
aggregate amount not to exceed $100,000,000 at any time outstanding (without
giving effect to any write-downs or write-offs thereof).

           

          SECTION
6.07. 
Transactions
with Affiliates.

           

          Except
for transactions between or among Loan Parties, enter into any transaction,
including any purchase, sale, lease or exchange of property, the rendering of
any service or the payment of any management, advisory or similar fees, with any
Affiliate (other than the Borrower or any Wholly Owned Guarantor) unless such
transaction is (a) otherwise permitted under this Agreement, (b) in the ordinary
course of business of the relevant Global Entity and (c) upon fair and
reasonable terms no less favorable to the relevant Global Entity than it would
obtain in a comparable arm’s length transaction with a Person that is not an
Affiliate, except that the following shall be permitted: (i) any Indebtedness
among the Loan Parties may be incurred to the extent permitted under Section
6.01, and Investments may be made to the extent permitted under Section 6.06;
(ii) customary fees for director and officer insurance, travel expenses and
indemnities may be paid to directors, managers or consultants of any Loan Party;
(iii) any transaction among Loan Parties or among Non-Loan Parties expressly
permitted under this Agreement; (iv) directors’, officers’ and employee
compensation (including bonuses and other compensation) and other benefits
(including retirement, health, stock option and other benefit plans) and
indemnification arrangements, in each case approved by the Board of Directors or
the board of directors of the relevant Global Entity or no less favorable to the
Borrower or the relevant Subsidiary, as the case may be, than what would have
been obtained at the relevant time from Persons who are not a Affiliates; (v)
commercially reasonable and fair allocation of costs

          


          
            
              
                 


              

              
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          among the
Borrower and the Subsidiaries, including corporate overhead costs; (vi)
transactions described on Schedule 6.07 annexed to the Existing Facility Credit
Agreement; and (vii) transactions pursuant to the Plan of
Reorganization.

           

          SECTION
6.08. 
Lines
of Business.

           

          Enter
into any business, either directly or through any Subsidiary, except for those
businesses and business activities in which the Borrower and its Subsidiaries
are engaged on the date of this Agreement or that are reasonably related
thereto.

           

          SECTION
6.09. 
Optional
Payments and Modifications of Certain Debt Instruments.

           

          (a) 
Make or offer to make any optional or voluntary payment, prepayment, repurchase
or redemption of or otherwise optionally or voluntarily defease or segregate
funds with respect to any Junior Lien Indebtedness or Subordinated Indebtedness
(except for Permitted Refinancings thereof plus the amount of premiums,
penalties, accrued and unpaid interest and fees and expenses associated
therewith); (b) amend, modify, waive or otherwise change, or consent or agree to
any amendment, modification, waiver or other change to, any of the terms of any
Subordinated Indebtedness permitted under Section 6.01(t) or (y) or Junior Lien
Indebtedness permitted under Section 6.01(t) or (y) (if the effect of such
amendment, modification, waiver or other change would be to (i) change to
earlier dates the dates on which any payments of principal or interest are due
thereon, (ii) increase the interest rate, or the portion thereof payable on a
current basis in cash, applicable thereto, (iii) change the redemption,
prepayment or defeasance provisions thereof, (iv) change the lien or payment
subordination provisions thereof (or of any guaranty thereof or intercreditor
arrangement with respect thereto), (v) materially change any collateral therefor
(other than to release such collateral), (vi) shorten the maturity date
therefor, or (vii) change any other term or provision thereof, if the effect of
such change, together with all other changes made, is to increase materially the
obligations of the obligor thereunder or to confer any additional rights on the
holders of such Indebtedness that would be materially adverse to the Borrower,
the Agent or the Lenders, without the prior written consent of the “Required
Lenders” as defined in the Existing Facility Credit Agreement) except in the
case of any Junior Lien Indebtedness, as otherwise permitted under the
Collateral Agency and Intercreditor Agreement; (c) amend, modify, waive or
otherwise change, or consent or agree to any amendment, modification, waiver or
other change to, any of the terms of any preferred stock of the Borrower if the
effect of such amendment, modification, waiver or other change would be to cause
such preferred stock to become Disqualified Capital Stock, without the prior
written consent of the “Required Lenders” as defined in the Existing Facility
Credit Agreement; or (d) designate any Indebtedness (other than obligations of
the Loan Parties pursuant to the Credit Documents or the “Loan Documents” (as
defined in the Existing Facility Credit Agreement)) as “Designated Senior
Indebtedness” (or any other defined term having a similar purpose) for the
purposes of any Subordinated Indebtedness Agreement.

           

          SECTION
6.10. 
Sales
and Leasebacks.

           

          Enter
into any arrangement with any Person providing for the leasing by any Global
Entity of real or personal property that has been or is to be sold or
transferred by such Global

          


          
            
              
                 


              

              
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          Entity to
such Person or to any other Person to whom funds have been or are to be
advanced, which such Global Entity intends to use for substantially the same
purpose or purposes as the property that has been or is to be sold or
transferred, unless (a) the sale of such property is permitted by Section 6.04
and (b) any Capital Lease Obligations or Liens arising in connection therewith
are permitted by Sections 6.01 and 6.02, respectively.

           

          SECTION
6.11. 
Swap
Agreements.

           

          Enter
into any Swap Agreement, except (a) Commodity Hedge Agreements and other Swap
Agreements that are entered into (x) in the ordinary course of business for a
merchant energy company which has a primary focus on operating and optimizing
its physical assets and providing related energy products to its customers and
consistent with prudent business practice to actively manage risks to which the
Borrower and its Subsidiaries are exposed in the conduct of their business or
the management of their liabilities and (y) consistent with applicable risk
management guidelines established by the Borrower from time to time and made
available for review to the Agent on or around the time of delivery of the
quarterly financial statements of the Borrower and its consolidated Subsidiaries
pursuant to Section 5.01 hereof and (b) Swap Agreements entered into in order to
effectively cap, collar or exchange interest rates (from fixed to floating
rates, from one floating rate to another floating rate or otherwise) with
respect to any interest-bearing liability or investment of the Borrower or any
Subsidiary.

           

          SECTION
6.12. 
Changes
in Fiscal Periods.

           

          Permit
the fiscal year of the Borrower to end on a day other than December 31 or change
the Borrower’s method of determining fiscal quarters.

           

          SECTION
6.13. 
Negative
Pledge Clauses.

           

          Enter
into or suffer to exist or become effective any agreement that prohibits or
limits the ability of any Loan Party to create, incur, assume or suffer to exist
any Lien upon any of its property or revenues, whether now owned or hereafter
acquired, to secure its obligations under the Credit Documents to which it is a
party other than (a) this Agreement and the other Credit Documents, (b) any
agreements governing any purchase money Liens or Capital Lease Obligations
otherwise permitted hereby (in which case, any prohibition or limitation shall
only be effective against the assets financed thereby), (c) any restrictions or
conditions contained in agreements relating to the sale or other disposition of
a Subsidiary or property of a Subsidiary pending such sale or disposition,
provided such restrictions and conditions apply only to the Subsidiary or
property that is to be sold or disposed of and such sale or disposition is
permitted hereunder, (d) any restrictions or conditions imposed by any agreement
relating to secured obligations permitted by this Agreement (including secured
obligations set forth on Schedule 6.2(a) to the Existing Facility Credit
Agreement) if such restrictions or conditions apply only to the property or
assets securing such obligations, (e) any customary prohibitions or conditions
in leases and other contracts restricting the assignment or subletting thereof,
(f) any prohibitions or conditions in contracts entered into in the ordinary
course of business restricting the assignment thereof, (g) the Bridge Loan
Documents and the Existing Facility Credit Agreement and the “Loan Documents” as
defined therein, (h) provisions in the principal lease, service or operating
agreements and power purchase agreements pertaining to Projects or the
partnership and

          


          
            
              
                 


              

              
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          financing
agreements relating to Projects, so long as in each case such lease, service,
operating, power purchase, partnership or financing agreement is subject to
usual and customary terms and is otherwise permitted to be entered into
hereunder and (i) any restrictions or conditions contained in (x) Swap
Agreements or Commodity Hedge Agreements permitted under this Agreement or the
Existing Facility Credit Agreement or (y) agreements for any Eligible Commodity
Hedge Financing or Unsecured Commodity Liquidity Facility permitted under
Section 6.01(n), in each case so long as such applicable restrictions or
conditions are no more restrictive, taken as a whole and in the reasonable
judgment of the Borrower, than the corresponding restrictions or conditions in
the Existing Facility Credit Agreement.

           

          SECTION
6.14. 
Clauses
Restricting Subsidiary Distributions.

           

          Enter
into or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Subsidiary of the Borrower to (a) make
dividends or distributions in respect of any Capital Stock of such Subsidiary
held by, or pay any Indebtedness owed to, the Borrower or any other Subsidiary
of the Borrower, or (b) make loans or advances to, or other Investments in, the
Borrower or any other Subsidiary of the Borrower, except for such encumbrances
or restrictions existing under or by reason of (i) any restrictions or
conditions existing under this Agreement and the other Credit Documents, (ii)
any restrictions with respect to a Subsidiary imposed pursuant to an agreement
that has been entered into in connection with the Disposition of all or
substantially all of the Capital Stock or assets of such Subsidiary or
conditions contained in agreements relating to the sale or other disposition of
a Subsidiary or property of a Subsidiary pending such sale or disposition,
provided such restrictions and conditions apply only to the Subsidiary or
property that is to be sold or disposed of and such sale or disposition is
permitted hereunder, (iii) any restrictions or conditions imposed on any
Subsidiary by the terms of any Indebtedness of such Subsidiary permitted to be
incurred hereunder, (iv) any restrictions or conditions imposed by any agreement
relating to secured obligations permitted by this Agreement if such restrictions
or conditions apply only to the property or assets securing such obligations,
(v) provisions in the principal lease, service or operating agreements and power
purchase agreements pertaining to Projects or the partnership and financing
agreements relating to Projects, so long as in each case such lease, service,
operating, power purchase, partnership or financing agreement is subject to
usual and customary terms and is otherwise permitted to be entered into
hereunder, (vi) any restriction or conditions existing under the Bridge Loan
Agreement and the other Bridge Loan Documents or under the Existing Facility
Credit Agreement and the other “Loan Documents” as defined therein, (vii) any
restrictions or conditions existing on the Closing Date (including under
agreements relating to secured obligations set forth on Schedule 6.02(a) to the
Existing Facility Credit Agreement) and (viii) any restrictions or conditions
contained in (x) Swap Agreements or Commodity Hedge Agreements permitted under
this Agreement or the Existing Facility Credit Agreement or (y) agreements for
any Eligible Commodity Hedge Financing or Unsecured Commodity Liquidity Facility
permitted under Section 6.01(n), in each case so long as such applicable
restrictions or conditions are no more restrictive, taken as a whole and in the
reasonable judgment of the Borrower, than the corresponding restrictions or
conditions in this Agreement.

          


          
            
              
                 


              

              
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          SECTION
6.15. 
Capital
Expenditures.

           

          Make or
commit to make (by way of the acquisition of securities of a Person or
otherwise) (i) any Capital Expenditure in respect of major maintenance
expenses of the Borrower and its Restricted Subsidiaries in the ordinary course
of business in any fiscal year set forth below if the amount of all such Capital
Expenditures in such fiscal year would exceed the amount set forth below
opposite such fiscal year:

          


          
            	 
      	
                     

                    Fiscal
      Year

                  	 
      	
                    Maximum Capital

                    Expenditures

                  	 
      
	 
      	
                    2007

                  	 
      	
                    $

                  	
                    385,000,000

                  	 
      
	 
      	
                    2008

                  	 
      	
                    $

                  	
                    388,000,000

                  	 
      
	 
      	
                    2009

                  	 
      	
                    $

                  	
                    250,000,000

                  	 
      
	 
      	
                    2010

                  	 
      	
                    $

                  	
                    295,000,000

                  	 
      


          

          


          or
(ii) any other Capital Expenditures of the Borrower and its Restricted
Subsidiaries in the ordinary course of business in any fiscal year set forth on
Schedule 6.15 to the Existing Facility Credit Agreement if the amount of all
such Capital Expenditures in such fiscal year would exceed the amount set forth
on such Schedule opposite such fiscal year; provided that in
either case of the foregoing clauses (i) and (ii), (a) any such
amount, if not so expended in the fiscal year for which it is permitted, may be
carried over for expenditure in the next succeeding fiscal year, and (b) at
the Borrower’s election, the amount of Capital Expenditures permitted in any
fiscal year may be increased by reducing the permitted amount of Capital
Expenditures in the next succeeding fiscal year in an amount equal to such
increase. In addition, the Loan Parties shall be permitted to make Capital
Expenditures financed with Net Cash Proceeds of issuances and sales of Capital
Stock (provided
that such Capital Expenditures are made in assets owned by Loan Parties and
Restricted Subsidiaries) and Reinvestment Deferred Amounts to the extent
permitted under the Existing Facility Credit Agreement without reducing the
amount permitted for any fiscal year set forth in the immediately preceding
sentence; provided that any
such amount, if not so expended in the fiscal year for which it is permitted,
may be carried over for expenditure in the next succeeding fiscal
year.

           

          SECTION
6.16. 
Use
of Proceeds.

           

          Use the
proceeds of the Advances for purposes other than those described in Section
3.09.

           

          SECTION
6.17. 
Financial
Covenants.

           

          (a)  Consolidated Leverage
Ratio. Permit the Consolidated Leverage Ratio as at the end of any fiscal
quarter occurring during any period set forth below (commencing with the first
such fiscal quarter that begins on a date after the Closing Date) to exceed the
ratio set forth below opposite such period:

          


          
            
              
                 


              

              
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                    Period

                  	 
      	
                    Consolidated

                    Leverage
      Ratio

                  	 
      
	 
      	
                    Closing
      Date – June 30, 2009

                  	 
      	
                    7.50
      to 1.00

                  	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                    July 1,
      2009 – June 30, 2010

                  	 
      	
                    7.25
      to 1.00

                  	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                    July 1,
      2010 and thereafter

                  	 
      	
                    7.00
      to 1.00

                  	 
      


          

          


          (b)  Consolidated Interest
Coverage Ratio. Permit the Consolidated Interest Coverage Ratio for any
period of four consecutive fiscal quarters of the Borrower ending on the last
day of any fiscal quarter occurring during any period set forth below
(commencing with the first such fiscal quarter that begins after the Closing
Date) to be less than the ratio set forth below opposite such
period:

           

          


          
            	 
      	
                     

                    Period

                  	 
      	
                    Consolidated Interest

                    Coverage
      Ratio

                  	 
      
	 
      	
                    Closing
      Date – December 31, 2009

                  	 
      	
                    1.40
      to 1.00

                  	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                    January 1,
      2010 and thereafter

                  	 
      	
                    1.50
      to 1.00

                  	 
      


          

          


          


          ; provided that for the
purposes of determining the ratio described above for the four consecutive
fiscal quarter period ending (i) as at the end of the first full fiscal
quarter of the Borrower that begins after January 31, 2008, Consolidated
Interest Expense shall be deemed to equal Consolidated Interest Expense for such
fiscal quarter multiplied by four, (ii) as at the end of the next fiscal
quarter of the Borrower following such fiscal quarter, Consolidated Interest
Expense shall be deemed to equal Consolidated Interest Expense for such fiscal
quarter and the previous fiscal quarter multiplied by two, and (iii) as at
the end of the next fiscal quarter of the Borrower following the fiscal quarter
referenced in clause (ii), Consolidated Interest Expense shall be deemed to
equal Consolidated Interest Expense for such fiscal quarter and the two previous
fiscal quarters multiplied by 4/3.

           

          (c)  Consolidated Senior Leverage
Ratio. Permit the Consolidated Senior Leverage Ratio as at the end of any
fiscal quarter occurring during any period set forth below (commencing with the
first such fiscal quarter that begins after the Closing Date) to exceed the
ratio set forth below opposite such period:

          


          
            	 
      	
                     

                    Period

                  	 
      	
                    Consolidated Senior

                    Leverage
      Ratio

                  	 
      
	 
      	
                    Closing
      Date – June 30, 2009

                  	 
      	
                    7.50
      to 1.00

                  	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                    July 1,
      2009 – June 30, 2010

                  	 
      	
                    7.25
      to 1.00

                  	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                    July 1,
      2010 and thereafter

                  	 
      	
                    7.00
      to 1.00

                  	 
      


          

          


          


          
            
              
                 


              

              
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          SECTION
6.18. CES 
Subsidiary Guarantors.

           

          Notwithstanding
anything to the contrary contained in this Agreement, the Subsidiaries of
Calpine Energy Services Holdings, Inc. listed on Schedule 1.1F annexed to the
Existing Facility Credit Agreement that are Restricted Subsidiaries shall not,
after the date hereof, be permitted to consummate any transactions permitted
under Article VI except for (x) Indebtedness and/or Liens that are in each case
permitted under Section 6.01(f) or (j) or Section 6.02(d) or (n) or (y) such
transactions which are in the ordinary course of business for a merchant energy
company which has a primary focus on operating and optimizing physical assets
and providing related energy products to its customers and consistent with
prudent business practice to actively manage their business and related risks to
which the Borrower and its Subsidiaries are exposed in the conduct of their
business or the management of their liabilities.

           

          ARTICLE
VII

           

          EVENTS
OF DEFAULT

           

          If any of
the following events (each an “Event of
Default”) shall occur and be continuing:

           

          (a)  the
Borrower shall fail to (i) pay any principal of any Outstanding Advance when due
in accordance with the terms hereof or (ii) pay any interest on any Outstanding
Advance, or any other amount payable hereunder or under any other Credit
Document to the Agent or the Lenders, within three (3) Business Days after any
such interest or other amount becomes due in accordance with the terms hereof or
thereof;

           

          (b)  any
representation or warranty made or deemed made by the Borrower herein or in any
other Credit Document or which is contained in any certificate, document or
financial or other statement required to be furnished by the Borrower at any
time under or in connection with this Agreement or any other Credit Document
shall prove to have been incorrect in any material respect on or as of the date
made or deemed made;

           

          (c)  the
Borrower shall default in the observance or performance of any agreement
contained in clause (i) or (ii) of Section 5.04(a), Section 5.07(a) or Section 6
of this Agreement or Sections 5.4 and 5.6(b) of the Guarantee and Collateral
Agreement;

           

          (d)  the
Borrower shall default in the observance or performance of any other agreement
contained in this Agreement or any other Credit Document (other than as provided
in paragraphs (a) through (c) of this Section), and such default shall continue
unremedied for a period of thirty (30) days after notice to the Borrower from
the Agent or the Required Lenders;

           

          (e)  (i) any
Restricted Subsidiary shall (A) default in making any payment of any principal
of any Indebtedness (including any Guarantee Obligation (other than any
Guarantee Obligation in respect of any Limited Recourse Debt or any Indebtedness
under the Existing Facility Credit Agreement or the “Loan Documents” (as defined
in the Existing Facility Credit Agreement)), but excluding the Advances and any
Indebtedness under the Existing Facility Credit Agreement or the “Loan
Documents” (as defined in the Existing Facility Credit Agreement)) on the
scheduled or original due date with respect thereto; or (B) default in
making

          


          
            
              
                 


              

              
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          any
payment of any interest on any such Indebtedness beyond the period of grace, if
any, provided in the instrument or agreement under which such Indebtedness was
created; or (C) default in the observance or performance of any other agreement
or condition relating to any such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to
cause, with the giving of notice if required (but after the expiration of all
grace periods applicable thereto), such Indebtedness to become due prior to its
stated maturity or (in the case of any such Indebtedness constituting a
Guarantee Obligation) to become payable, provided that this
clause (C) shall not apply to Indebtedness that becomes due solely as a result
of the voluntary sale or transfer of property or assets to the extent such sale
or transfer is permitted by the terms of such Indebtedness; provided, that a
default, event or condition described in clause (A), (B) or (C) of this
paragraph (e) shall not at any time constitute an Event of Default unless, at
such time, one or more defaults, events or conditions of the type described in
clauses (A), (B) and (C) of this paragraph (e) shall have occurred and be
continuing with respect to Indebtedness the outstanding principal amount of
which exceeds in the aggregate $100,000,000; or (ii) any Global Entity shall,
with respect to Limited Recourse Debt in an aggregate principal amount in excess
of $300,000,000, default in the observance or performance of any agreement or
condition relating to any such Limited Recourse Debt or contained in any
instrument or agreement evidencing, securing or relating thereto, and such
Limited Recourse Debt shall as a result thereof become due prior to its stated
maturity;

           

          (f)  (i) any
Material Obligor shall commence any case, proceeding or other action (A) under
any existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding up, liquidation, dissolution, composition or other relief with respect
to it or its debts, or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or any Material Obligor shall make a general
assignment for the benefit of its creditors; or (ii) there shall be commenced
against any Material Obligor any case, proceeding or other action of a nature
referred to in clause (i) above that (A) results in the entry of an order for
relief or any such adjudication or appointment or (B) remains undismissed or
undischarged for a period of 60 days; or (iii) there shall be commenced against
any Material Obligor any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against all or
any substantial part of its assets that results in the entry of an order for any
such relief that shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) any Global Entity
shall take any action in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)
above; or (v) any Material Obligor shall generally not, or shall be unable to,
or shall admit in writing its inability to, pay its debts as they become
due;

           

          (g)  one or
more judgments or decrees shall be entered against any Material Obligor
involving in the aggregate a liability (not paid or fully covered by insurance
as to which the relevant insurance company has acknowledged coverage) of
$100,000,000 or more, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal

          


          
            
              
                 


              

              
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          within 30
days from the entry thereof (except any such judgment or decree in respect of
the CalGen Makewhole Payment shall not be counted as a judgment or decree for
purposes of this clause (g));

           

          (h)  (i) any
Person shall engage in any “prohibited transaction” (as defined in Section 406
of ERISA or Section 4975 of the Code) involving any Plan; (ii) any “accumulated
funding deficiency” (as defined in Section 302 of ERISA), whether or not waived,
shall exist with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of any Global Entity or any Commonly Controlled
Entity; (iii) a Reportable Event shall occur with respect to, or proceedings
shall commence to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is likely to result in
the termination of such Plan for purposes of Title IV of ERISA; (iv) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA; (v) any Global
Entity or any Commonly Controlled Entity shall, or in the reasonable opinion of
the Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or ERISA Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with respect to a
Plan; and in each case in clauses (i) through (vi) above, such event or
condition, together with all other such events or conditions, if any, could
reasonably be expected to have a Material Adverse Effect;

           

          (i)      
any of
the Security Documents shall cease, for any reason, to be in full force and
effect (other than in accordance with its terms) with respect to Collateral with
a book value greater than $50,000,000, or the Borrower or any Affiliate of the
Borrower shall so assert, or any Lien (affecting Collateral with a book value
greater than $50,000,000) created by any of the Security Documents shall cease
to be enforceable and of the same effect and priority purported to be created
thereby (other than, in each case, pursuant to a failure of the Agent, the
Collateral Agent, any other agent appointed by the Agent, the Collateral Agent
or the Lenders to take any action within the sole control of such Person) (it
being understood that the release of Collateral from the Security Documents or
the discharge of a Guarantor therefrom shall not be construed (x) as any of the
Security Documents ceasing to be in full force and effect or (y) as any of the
Liens created thereunder ceasing to be enforceable or of the same priority and
effect purported to be created thereby);

           

          (j)      
the
guarantee contained in Section 2 of the Guarantee and Collateral Agreement shall
cease, for any reason, to be in full force and effect (other than in accordance
with its terms) or the Borrower or any Affiliate of the Borrower shall so assert
(it being understood that the discharge of a Guarantor from the Guarantee and
Collateral Agreement shall not be construed as the Guarantee and Collateral
Agreement ceasing to be in full force and effect);

           

          (k)  the Lien
subordination provisions or any other provision of the Collateral Agency and
Intercreditor Agreement shall cease for any reason to be valid (other than by
its express terms) and, in the case of any provision of the Collateral Agency
and Intercreditor Agreement other than the Lien subordination provisions, the
result thereof is that the interests of the Lenders are materially and adversely
affected, or the Borrower or any of its Subsidiaries shall assert in writing
that the Lien subordination provisions or any such other provision of the
Collateral Agency and Intercreditor Agreement shall not for any reason be valid
(other than by its express terms); or

          


          
            
              
                 


              

              
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          (l)      
any
Subordinated Indebtedness or the guarantees thereof shall cease, for any reason,
to be validly subordinated to the Obligations or the obligations of the
Subsidiary Guarantors under the Guarantee and Collateral Agreement, as the case
may be, as provided in any Subordinated Indebtedness Agreement, or the Borrower,
any Affiliate of the Borrower, the trustee in respect of the Subordinated
Indebtedness or the holders of at least 25% in aggregate principal amount of the
Subordinated Indebtedness shall so assert; or

           

          (m)  there
shall occur a Change of Control; or

           

          (n)  all or
any portion of the Indebtedness under the Existing Facility Credit Agreement or
the “Loan Documents” (as defined in the Existing Facility Credit Agreement)
shall become or be declared due and payable prior to its stated maturity, or
there shall be a default in making any payment of principal or interest on the
scheduled or original due date of such Indebtedness beyond the period of grace,
if any, provided under the Existing Facility Credit Agreement or the “Loan
Documents” (as defined in the Existing Facility Credit Agreement);

           

          then, and
in every such event, and at any time thereafter during the continuance of such
event, the Agent, at the request of the Required Lenders, shall, by notice to
the Borrower, take one or all of the following actions, at the same or different
times: (i) terminate forthwith the Commitments, including without limitation the
right of the Borrower to request and receive Advances; and (ii) declare the
Advances of the Borrower then outstanding to be forthwith due and payable in
whole or in part, whereupon the principal of the Advances so declared to be due
and payable, together with accrued interest thereon and any unpaid accrued Fees
and all other liabilities of the Borrower accrued hereunder, shall become
forthwith due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived by the Borrower,
anything contained herein to the contrary notwithstanding; provided that in the
case of any event described in subsection (f) above affecting the Borrower, the
right of the Borrower to request and receive Advances shall automatically
terminate and the principal of the Advances then outstanding of the Borrower,
together with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrower accrued hereunder shall automatically become due and
payable, without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived by the Borrower, anything contained
herein to the contrary notwithstanding.

           

          ARTICLE
VIII

           

          THE
AGENTS

           

          SECTION
8.01. 
Appointment;
Powers and Duties.

           

          (a)  Each of
the initial Lenders under this Agreement (the “Original
Lenders”), hereby appoints GSCP as Payment Agent hereunder effective as
of the date of this Agreement and GSCP accepts such appointment and agrees that
in such capacity it shall (i) pay all sums to be paid on behalf of the Original
Lenders hereunder to the extent sufficient funds have been provided therefor by
the Original Lenders, (ii) receive all sums to be received on behalf of the
Original Lenders hereunder, (iii) account to the Original Lenders and the
Borrower for all payments and receipts made or received by it as Payment Agent,
(iv) maintain such records as

          


          
            
              
                 


              

              
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          may
reasonably be requested by the Original Lenders or the Borrower and furnish such
copies thereof as such party may reasonably request and (v) abide by all
provisions of this Agreement relating to the duties and responsibilities of the
Payment Agent (the “Payment Agent
Duties”).

           

          (b)  The
Original Lenders are Affiliates of The Goldman Sachs Group, Inc. (“GS
Group”).  So long as all Lenders hereunder are Affiliates of GS
Group, the Original Lenders that are Lenders shall jointly act as the lead
Lender hereunder (collectively, the “Lead
Lender”).  Each of the Original Lenders hereby accepts such
joint appointment.  So long as a Lead Lender is required to be acting
hereunder, all actions, decisions and functions of the Agent hereunder (other
than the Payment Agent Duties) shall be performed by the Lead Lender and the
provisions of Sections 8.02, 8.03, 8.04, 8.05 and 8.06 below shall, with respect
to such actions, decisions and functions, be applicable to the Lead Lender
acting in such capacity.  In addition, the Original Lenders acting
jointly as the Lead Lender are designated as the initial “First Lien
Representative” for purposes of (and as defined in) the Collateral Agency and
Intercreditor Agreement with respect to this Agreement, which constitutes a
“Series of First Lien Debt” thereunder and the Lead Lender shall continue to
serve as such First Lien Representative until an Administrative Agent is
appointed pursuant to Section 8.01(c) below.

           

          (c)  It shall
be a condition to any non-Affiliate of GS Group becoming a Lender hereunder that
(i) GSCP resign as Payment Agent hereunder, (ii) the Lead Lender cease
functioning hereunder in its capacity as such and (iii) an entity other than
GSCP be appointed, and agree to serve, as administrative agent (the “Administrative
Agent”) hereunder subject to the terms and conditions set forth in
Sections 8.02, 8.03, 8.04, 8.05 and 8.06 below and such other terms and
conditions as are mutually agreed between the Lenders and such
entity.  In addition, the Administrative Agent, at the time it is so
appointed, shall also become the “First Lien Representative” for purposes of
(and as defined in) the Collateral Agency and Intercreditor Agreement with
respect to this Agreement, which constitutes a “Series of First Lien Debt”
thereunder.

           

          (d)  As used
herein, the term “Agent” shall mean and refer to (i) prior to the appointment of
an Administrative Agent pursuant to Section 8.01(c) above, the Payment Agent
with respect to the Payment Agent Duties and the Lead Lender with respect to the
actions, decisions and functions hereunder for which it is responsible and (ii)
from and after such appointment of an Administrative Agent, such Administrative
Agent.

           

          (e)  GSCP, by
virtue of its designation as a “Sole Lead Arranger and Sole Bookrunner” on the
cover page of this Agreement, shall not have any duties, liabilities,
obligations or responsibilities under this Agreement other than, if applicable,
as the Payment Agent, or as a Lender hereunder.

           

          SECTION
8.02. 
General
Immunity.

           

          (a)     
No Responsibility for
Certain Matters.  No Agent shall be responsible to any Lender
for the execution, effectiveness, genuineness, validity, enforceability,
collectability or sufficiency of this Agreement or any other document,
instrument or agreement executed for the benefit of the Agent or a Lender in
connection with this Agreement or for any representations, warranties, recitals
or statements made herein or therein or made in any written or oral

          


          
            
              
                 


              

              
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          statements
or in any financial or other statements, instruments, reports or certificates or
any other documents furnished or made by any Agent to Lenders or by or on behalf
of the Borrower to any Lender in connection with this Agreement or any other
document, instrument or agreement executed for the benefit of any Agent or a
Lender in connection with this Agreement and the transactions contemplated
thereby or for the financial condition or business affairs of the Borrower or
any other Person liable for the payment of any Obligations, nor shall any Agent
be required to ascertain or inquire as to the performance or observance of any
of the terms, conditions, provisions, covenants or agreements contained in this
Agreement or any other document, instrument or agreement executed for the
benefit of any Agent or a Lender in connection with this Agreement or as to the
use of the proceeds of the Advances or as to the existence or possible existence
of any Event of Default or Default or to make any disclosures with respect to
the foregoing.  Anything contained herein to the contrary
notwithstanding, no Agent shall have liability arising from confirmations of the
amount of outstanding Advances or the component amounts thereof.

           

          (b)  Exculpatory
Provisions.  No Agent nor any of its officers, partners,
directors, employees or agents shall be liable to Lenders for any action taken
or omitted by any Agent under or in connection with this Agreement or any other
document, instrument or agreement executed for the benefit of any Agent or a
Lender in connection with this Agreement except to the extent caused by such
Agent’s gross negligence or willful misconduct, as determined by a final,
non-appealable judgment of a court of competent jurisdiction.  Each
Agent shall be entitled to refrain from any act or the taking of any action
(including the failure to take an action) in connection herewith or any other
document, instrument or agreement executed for the benefit of any Agent or a
Lender in connection with this Agreement or from the exercise of any power,
discretion or authority vested in it hereunder or thereunder unless and until
such Agent shall have received instructions in respect thereof from the Required
Lenders and, upon receipt of such instructions from the Required Lenders, such
Agent shall be entitled to act or (where so instructed) refrain from acting, or
to exercise such power, discretion or authority, in accordance with such
instructions.  Without prejudice to the generality of the foregoing,
(i) any Agent shall be entitled to rely, and shall be fully protected in
relying, upon any communication, instrument or document believed by it to be
genuine and correct and to have been signed or sent by the proper Person or
Persons, and shall be entitled to rely and shall be protected in relying on
opinions and judgments of attorneys (who may be attorneys for the Borrower),
accountants, experts and other professional advisors selected by it; and (ii) no
Lender shall have any right of action whatsoever against any Agent as a result
of such Agent acting or (where so instructed) refraining from acting hereunder
or any other document, instrument or agreement executed for the benefit of any
Agent or a Lender in connection with this Agreement in accordance with the
instructions of Required Lenders.

           

          (c)  Delegation of
Duties.  Any Agent may perform any and all of its duties and
exercise its rights and powers under this Agreement or under any other document,
instrument or agreement executed for the benefit of any Agent or a Lender in
connection with this Agreement, by or through any one or more sub-agents
appointed by the Agent. Any Agent and any such sub-agent may perform any and all
of its duties and exercise its rights and powers by or through their respective
Affiliates.  The exculpatory, indemnification and other provisions of
this Section 8.02 and of Section 8.04 shall apply to any the Affiliates of the
Agent and shall apply to their respective activities as Agent. All of the
rights, benefits, and privileges (including the

          


          
            
              
                 


              

              
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          exculpatory
and indemnification provisions) of this Section 8.02 and of Section 8.04 shall
apply to any such sub-agent and to the Affiliates of any such sub-agent, and
shall apply to their respective activities as sub-agent as if such sub-agent and
Affiliates were named herein.  Notwithstanding anything herein to the
contrary, with respect to each sub-agent appointed by an Agent, (i) such
sub-agent shall be a third party beneficiary under this Agreement with respect
to all such rights, benefits and privileges (including exculpatory rights and
rights to indemnification) and shall have all of the rights and benefits of a
third party beneficiary, including an independent right of action to enforce
such rights, benefits and privileges (including exculpatory rights and rights to
indemnification) directly, without the consent or joinder of any other Person,
against the Borrower and the Lenders, (ii) such rights, benefits and privileges
(including exculpatory rights and rights to indemnification) shall not be
modified or amended without the consent of such sub-agent, and (iii) such
sub-agent shall only have obligations to the Agent and not to the Borrower,
Lender or any other Person and no Borrower, Lender or any other Person shall
have any rights, directly or indirectly, as a third party beneficiary or
otherwise, against such sub-agent.

           

          SECTION
8.03. 
Lenders’
Representations, Warranties and Acknowledgment.

           

          (a)  Each
Lender represents and warrants that it has made its own independent
investigation of the financial condition and affairs of the Borrower in
connection with Advances hereunder and that it has made and shall continue to
make its own appraisal of the creditworthiness of the Borrower.  No
Agent shall have any duty or responsibility, either initially or on a continuing
basis, to make any such investigation or any such appraisal on behalf of Lenders
or to provide any Lender with any credit or other information with respect
thereto, whether coming into its possession before the making of Advances or at
any time or times thereafter, and no Agent shall have any responsibility with
respect to the accuracy of or the completeness of any information provided to
Lenders.

           

          (b)  Each
Lender, by delivering its signature page to this Agreement or an Assignment and
Acceptance, shall be deemed to have acknowledged receipt of, and consented to
and approved this Agreement and any other document, instrument or agreement
executed for the benefit of any Agent or a Lender in connection with this
Agreement and each other document required to be approved by any Agent or the
Required Lenders, as applicable, on the Closing Date.

           

          SECTION
8.04. 
Right
to Indemnity.

           

          Each
Lender, in proportion to its Commitment, severally agrees to indemnify each
Agent, to the extent that such Agent shall not have been reimbursed by the
Borrower, for and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including counsel fees
and disbursements) or disbursements of any kind or nature whatsoever which may
be imposed on, incurred by or asserted against such Agent in exercising its
powers, rights and remedies or performing its duties hereunder or any other
document, instrument or agreement executed for the benefit of any Agent or a
Lender in connection with this Agreement or otherwise in its capacity as such
Agent in any way relating to or arising out of this Agreement or any other
document, instrument or agreement executed for the benefit of any Agent or a
Lender in connection with this Agreement; provided, no Lender
shall be liable for any

          


          
            
              
                 


              

              
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          portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from such Agent’s
gross negligence or willful misconduct, as determined by a final, non-appealable
judgment of a court of competent jurisdiction.  If any indemnity
furnished to any Agent for any purpose shall, in the opinion of such Agent, be
insufficient or become impaired, such Agent may call for additional indemnity
and cease, or not commence, to do the acts indemnified against until such
additional indemnity is furnished; provided, in no event
shall this sentence require any Lender to indemnify any Agent against any
liability, obligation, loss, damage, penalty, action, judgment, suit, cost,
expense or disbursement in excess of such Lender’s Commitment; and provided further, this
sentence shall not be deemed to require any Lender to indemnify any Agent
against any liability, obligation, loss, damage, penalty, action, judgment,
suit, cost, expense or disbursement described in the proviso in the immediately
preceding sentence.

           

          SECTION
8.05. 
Withholding
Taxes.

           

          To the
extent required by any applicable law, any Agent may withhold from any payment
to any Lender an amount equivalent to any applicable withholding
tax.  If the Internal Revenue Service or any other authority of the
United States asserts a claim that the Agent did not properly withhold tax from
amounts paid to or for the account of any Lender because the appropriate form
was not delivered or was not properly executed or because such Lender failed to
notify the Agent of a change in circumstance which rendered the exemption from,
or reduction of, withholding tax ineffective or for any other reason, such
Lender shall indemnify the Agent fully for all amounts paid, directly or
indirectly, by the Agent as tax or otherwise, including any penalties or
interest and together with all expenses (including legal expenses, allocated
internal costs and out-of-pocket expenses) incurred.

           

          SECTION
8.06. 
Successor
Agent.

           

          The
Administrative Agent shall have the right to resign at any time by giving 30
days’ prior written notice thereof to the Lenders and the Borrower and the
Administrative Agent may be removed at any time with or without cause by an
instrument or concurrent instruments in writing delivered to the Borrower and
the Administrative Agent and signed by the Required Lenders.  The
Administrative Agent shall have the right to appoint a financial institution to
act as the Administrative Agent hereunder, subject to the reasonable
satisfaction of the Required Lenders and approval by the Borrower (which
approval shall not be unreasonably withheld or delayed), and the Administrative
Agent’s resignation shall become effective on the earlier of (i) the acceptance
of such successor Administrative Agent by the Borrower and the Required Lenders
or (ii) the thirtieth day after such notice of resignation.  Upon any
such notice of resignation or any such removal, if a successor Administrative
Agent has not already been appointed by the retiring Administrative Agent, the
Required Lenders shall have the right, upon five Business Days’ notice to the
Borrower and receipt of approval by the Borrower (which shall not be
unreasonably withheld or delayed), to appoint a successor Administrative
Agent.  If neither the Required Lenders nor the Administrative Agent
have appointed a successor Administrative Agent, the Required Lenders shall be
deemed to have succeeded to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent.  Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, that successor Administrative Agent shall thereupon
succeed to and

          


          
            
              
                 


              

              
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          become
vested with all the rights, powers, privileges and duties of the retiring or
removed Administrative Agent and such retiring or removed Administrative Agent
shall be discharged from its duties and obligations hereunder.  After
any retiring or removed Administrative Agent’s resignation or removal hereunder
as Administrative Agent, the provisions of this Article VIII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent hereunder.

           

          ARTICLE
IX

           

          MISCELLANEOUS

           

          SECTION
9.01. 
Certain
Modifications.

           

          (a)  Subject
to Section 9.01(b) below, if at any time that the Existing Facility Credit
Agreement remains in effect and any obligations are outstanding thereunder, any
amendment, modification, supplement, consent or waiver becomes effective
thereunder (or under the “Loan Documents” as defined therein) with respect to
any representation or warranty that corresponds to a representation or warranty
set forth in Article III hereof (it being understood and agreed that the
representations or warranties in Sections 3.02 and 3.03 to the extent relating
to the execution, delivery or performance of this Agreement do not correspond to
any representation or warranty under the Existing Facility Credit Agreement), or
any affirmative covenant or negative covenant that corresponds to an affirmative
covenant or negative covenant, respectively, set forth in Article V or Article
VI hereof, respectively, or any default or event of default with respect to the
Credit Documents that corresponds to an Event of Default set forth in Sections
7.01(b), 7.01(c) or 7.01(d) hereof, or, in each case, any defined term used in
such representation, warranty, covenant, default or event of default, then (i)
the Borrower shall cause the Existing Facility Administrative Agent to notify
the Agent hereunder of such amendment, modification, supplement, consent or
waiver and (ii) upon such notice being given, and without any further action by
the Agent or any Lender hereunder, the representation, warranty, affirmative
covenant, negative covenant, default or event of default or definition hereunder
that corresponds to the representation, warranty, affirmative covenant, negative
covenant, default or event of default or definition (as applicable) under the
Existing Facility Credit Agreement affected by such amendment, modification,
supplement, consent or waiver shall be deemed to be subject to an identical
amendment, modification, supplement, consent or waiver for all purposes of this
Agreement; provided that, to the extent any such amendment, modification,
supplement, consent or waiver shall by its terms directly and disproportionately
disadvantage the Lenders hereunder relative to the Existing Facility Lenders or
affects any of the Excluded Provisions in a manner that either the Agent or the
Required Lenders reasonably deem to be adverse to the Lenders hereunder, then
(notwithstanding anything in this Section 9.01(a) to the contrary) such
amendment, modification, supplement, consent or waiver shall not become
effective for purposes of this Agreement without the prior consent of the
Required Lenders hereunder.

           

          (b)  If the
Existing Facility Credit Agreement terminates prior to the termination of this
Agreement, then (i) except as provided in clause (ii) and (iii) below, the
representations, warranties and covenants (and defined  terms used
therein) as in effect hereunder at the time the Existing Facility Credit
Agreement terminates (including any defined terms incorporated from the Existing
Facility Credit Agreement) shall continue in effect notwithstanding such
termination

          


          
            
              
                 


              

              
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          of the
Existing Facility Credit Agreement and, for such purpose, any terms, conditions
or definitions incorporated by reference from the Existing Facility Credit
Agreement shall be treated as if set forth in full in this Agreement at the time
of such termination, (ii) notwithstanding anything to the contrary in Section
9.01(a), any amendment, modification, supplement, consent or waiver affecting
any of such representations, warranties or covenants (and defined terms used
herein) in the Existing Facility Credit Agreement that is entered into or
provided in connection with or in anticipation of the termination of the
Existing Facility Credit Agreement shall not become effective with respect to
the corresponding representations, warranties, covenants and definitions under
this Agreement without the prior consent of the Required Lenders hereunder and
(iii) references in such representations, warranties and covenants (and defined
terms used therein) to “Loan Documents”, “Existing Facility Administrative
Agent”, “Existing Facility Lenders” and “Existing Facility Credit Agreement”
shall instead be deemed to refer to “Credit Documents”, “Agent”, “Lenders” and
“this Agreement” and any similar conforming changes shall be deemed to be made
to implement the intent of this provision, including, by way of example, deeming
any requirement for the consent of the Existing Facility Lenders to be a
requirement for the consent of the Required Lenders.  In addition, the
Borrower agrees that it will execute such further documents or instruments as
the Lenders reasonably request to better or further implement the intent of this
provision.

           

          (c)  If any
fee of any nature is paid directly or indirectly by one or more Loan Parties to
the Existing Facility Administrative Agent or the Existing Facility Lenders (or
a class thereof) in consideration for any amendment, modification, supplement,
consent or waiver that pursuant to Section 9.01(a) results in an identical
amendment, modification, supplement, consent or waiver to a corresponding
provision of this Agreement, an "equivalent fee" shall be payable to the Agent
or Lenders hereunder (as the case may be) to the extent such fee relates to such
identical amendment, modification, supplement, consent or waiver, with the
"equivalent" amount of such fee to be determined by multiplying the applicable
amount of such fee paid in connection with the Existing Facility Credit
Agreement by the ratio of (x) the total amount of Advances and unutilized
Commitments over (y) the total amount of loans, letters of credit and unutilized
commitments to extend credit under the Existing Facility Credit
Agreement.

           

          (d)  The
provisions of Section 9.01(a) above shall not affect any provisions of this
Agreement other than the representations and warranties, affirmative covenants,
negative covenants and definitions described in such Section and, without
limiting the generality of the foregoing, shall in no way limit (i) the
Borrower’s obligations under such unaffected provisions (including its
obligations to make payments as and when due hereunder), (ii) the right of the
Lenders to vote on all amendments, modifications, supplements, consents, waivers
and other matters relating to such unaffected provisions, including, without
limitation, the provisions referred to in Sections 9.04, 9.05, 9.06 and 9.09 or
(iii) any express rights to vote as a Series of First Lien Debt under (and as
such term is defined in) the Collateral Agency and Intercreditor
Agreement.

           

          SECTION
9.02. 
Notices.

           

          (a)  Notices
and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed or sent by facsimile, as
follows:

          


          
            
              
                 


              

              
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          (i)  if to the
Borrower, to Calpine Corporation, 50 West San Fernando Street, San Jose,
CA  95113, Attention:  Chief Financial Officer; General
Counsel (Facsimile No. (408) 995-0505), with a copy (which shall not constitute
notice) to Kirkland & Ellis LLP, Citigroup Center, 153 E. 53rd St., New
York, NY  10022, Attention:  Rick Cieri, Esq. and Yongjin
Im, Esq. (Facsimile No. (212) 446-4900);

           

          (ii)  if to the
Agent, to Goldman Sachs Credit Partners L.P., c/o Goldman, Sachs & Co., 30
Hudson Street, 17th Floor,
Jersey City, NJ 07302, Attention: Rahul Kapur, Walt Jackson, Andrew Pardo,
Douglas Tansey and Umesh Subramanian (Facsimile No. (212-357-4597), with a copy
(which shall not constitute notice) to Goldman Sachs Credit Partners L.P., 1 New
York Plaza, New York, New York 10004, Attention: Rob Schatzman (Facsimile No.
(212-902-3000), with a copy (which shall not constitute notice) to Morrison
& Foerster LLP, 1290 Avenue of the Americas, New York, New York 10104-0050,
Attention:  David H. Kaufman, Esq. (Facsimile No. (212) 468-7900);
and

           

          (iii)  if to a
Lender, to it at its address (or facsimile number) set forth in the Register or
in the Assignment and Acceptance pursuant to which such Lender became a party
hereto.

           

          All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date
of receipt if delivered by hand or overnight courier service or sent by
facsimile or electronic mail to such party as provided in this Section or in
accordance with the latest unrevoked direction from such party given in
accordance with this Section.

           

          (b)  Electronic
Communications.

           

          (i)  Notices
and other communications to the Lenders may be delivered or furnished by
electronic communication (including e-mail and Internet or intranet websites,
including the Platform) pursuant to procedures approved by the Agent, provided that the
foregoing shall not apply to notices to any Lender pursuant to Article II if
such Lender, as applicable, has notified the Agent that it is incapable of
receiving notices under such Section by electronic communication.  The
Agent or the Borrower may, in its discretion, agree (in writing) to accept
notices and other communications to it hereunder by facsimile or other
electronic communications pursuant to procedures approved by it, provided that
approval of such procedures may be limited to particular notices or
communications.  Unless the Agent otherwise prescribes, (i) notices
and other communications sent to an e-mail address shall be deemed received upon
the sender’s receipt of an acknowledgement from the intended recipient (such as
by the “return receipt requested” function, as available, return e-mail or other
written acknowledgement), provided that if such
notice or other communication is not sent during the normal business hours of
the recipient, such notice or communication shall be deemed to have been sent at
the opening of business on the next Business Day for the recipient, and (ii)
notices or communications posted to an Internet or intranet website shall be
deemed received upon the deemed receipt by the intended recipient at its e-mail
address as

          


          
            
              
                 


              

              
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          described
in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.

           

          (ii)  The
Borrower understands that the distribution of material through an electronic
medium is not necessarily secure and that there are confidentiality and other
risks associated with such distribution and agrees and assumes the risks
associated with such electronic distribution, except to the extent caused by the
willful misconduct or gross negligence of the Agent.

           

          (iii)  The
Platform and any Approved Electronic Communications are provided “as is” and “as
available”.  None of the Agents or any of their respective officers,
directors, employees, agents, advisors or representatives (the “Agent
Affiliates”) warrant the accuracy, adequacy, or completeness of the
Approved Electronic Communications or the Platform and each expressly disclaims
liability for errors or omissions in the Platform and the Approved Electronic
Communications.  No warranty of any kind, express, implied or
statutory, including any warranty of merchantability, fitness for a particular
purpose, non-infringement of third party rights or freedom from viruses or other
code defects is made by the Agent Affiliates in connection with the Platform or
the Approved Electronic Communications.

           

          (iv)  The
Borrower, each of the Lenders, and the Agents agree that the Agent may, but
shall not be obligated to, store any Approved Electronic Communications on the
Platform in accordance with Agent’s customary document retention procedures and
policies.

           

          SECTION
9.03. 
Survival
of Agreement.

           

          All
covenants, agreements, representations and warranties made by the Borrower
herein and in the certificates or other instruments prepared or delivered in
connection with or pursuant to this Agreement shall be considered to have been
relied upon by the Lenders and shall survive the making by the Lenders of the
Advances regardless of any investigation made by the Lenders or on their behalf,
and shall continue in full force and effect as long as there are any Outstanding
Advances or any Fee or any other amount payable under this Agreement is
outstanding and unpaid or the Commitments have not been terminated.

           

          SECTION
9.04. 
Binding
Effect.

           

          This
Agreement shall become effective when it shall have been executed by the
Borrower, the Lenders and the Agent and when the Agent shall have received
copies hereof (via facsimile or otherwise) which, when taken together, bear the
signature of each party, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
except that the Borrower shall not have the right to assign any rights hereunder
or any interest herein without the prior consent of all the
Lenders.

           

          SECTION
9.05. 
Successors and Assigns;
Participants.

           

          (a)  Whenever
in this Agreement any of the parties hereto is referred to, such reference shall
be deemed to include the successors and assigns of such party; and all
covenants,

          


          
            
              
                 


              

              
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          promises
and agreements by or on behalf of any party that are contained in this Agreement
shall bind and inure to the benefit of its successors and assigns.

           

          (b)  The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted hereby,
except that (i) the Borrower may not assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by the Borrower without such
consent shall be null and void) and (ii) no Lender may assign or otherwise
transfer its rights or obligations hereunder except in accordance with this
Section.

           

          (c)  (i)           Subject
to the conditions set forth in paragraph (c)(ii) below, any Lender may assign to
one or more assignees (each, an “Assignee”)
all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Commitments and the Advances at the time owing to it)
with the prior written consent of:

           

          (A)  the
Borrower (such consent not to be unreasonably withheld), provided that no
consent of the Borrower shall be required for an assignment to a Lender, an
affiliate of a Lender, an Approved Fund (as defined below) or, if an Event of
Default has occurred and is continuing, any other Person; and

           

          (B)  the
Agent, provided
that no consent of the Agent shall be required for an assignment to a Lender, an
affiliate of a Lender or an Approved Fund.

           

          (ii)  Assignments
shall be subject to the following additional conditions:

           

          (A)  except in
the case of an assignment to a Lender, an affiliate of a Lender or an Approved
Fund or an assignment of the entire remaining amount of the assigning Lender’s
Commitments or Advances hereunder, the amount of the Commitments or Advances of
the assigning Lender subject to each such assignment (determined as of the date
the Assignment and Acceptance with respect to such assignment is delivered to
the Administrative Agent) shall not be less than $5,000,000, unless each of the
Borrower and the Agent otherwise consent, provided that
(1) no such consent of the Borrower shall be required if an Event of
Default has occurred and is continuing and (2) such amounts shall be
aggregated in respect of each Lender and its affiliates or Approved Funds, if
any;

           

          (B)  (1) the
parties to each assignment shall execute and deliver to the Agent an Assignment
and Acceptance, together with a processing and recordation fee of $3,500 and
(2) the assigning Lender shall have paid in full any amounts owing by it to
the Agent; and

           

          (C)  the
Assignee, if it shall not be a Lender, shall deliver to the Agent a
questionnaire in which the Assignee designates one or more credit contacts to
whom all syndicate-level information (which may contain material non-public
information about the Borrower and its Affiliates and their related parties or
their respective securities) will be made available and who may receive such
information in accordance with the assignee’s compliance procedures and
applicable laws, including Federal and state securities laws.

          


          
            
              
                 


              

              
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          For the
purposes of this Section 9.05, “Approved
Fund” means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of
credit in the ordinary course of its business and that is administered or
managed by (a) a Lender, (b) an affiliate of a Lender or (c) an
entity or an affiliate of an entity that administers or manages a
Lender.

           

          (iii)  Subject
to acceptance and recording thereof pursuant to paragraph (c)(iv) below, from
and after the effective date specified in each Assignment and Acceptance the
Assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.14, 2.15, 2.19 and 9.06). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this Section 9.05 shall be treated for purposes
of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.

           

          (iv)  The
Agent, acting for this purpose as an agent of the Borrower, shall maintain at
one of its offices a copy of each Assignment and Acceptance delivered to it and
a register for the recordation of the names and addresses of the Lenders, and
the Commitments of, and principal amount of the Advances owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”).
The entries in the Register shall be conclusive, and the Borrower, the Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice. Any assignment of any Loan
shall be effective only upon appropriate entries with respect thereto being made
in the Register.

           

          (v)  Upon its
receipt of an Assignment and Acceptance (executed via an electronic settlement
system acceptable to the Agent (or, if previously agreed with the Agent,
manually)), by a transferor Lender and an Assignee (and, in the case of an
Assignee that is not then a Lender, by the Agent and the Borrower to the extent
required under paragraph (c) above) together with payment to the
Administrative Agent of a recordation and processing fee of $3,500 (which fee
may be waived or reduced in the sole discretion of the Administrative Agent),
the Administrative Agent shall (i) promptly accept such Assignment and
Acceptance, (ii) on the effective date of such transfer determined pursuant
thereto record the information contained therein in the Register and
(iii) give notice of such acceptance and recordation to the transferor
Lender, the Assignee and the Borrower.

           

          (d)          
(i)        Any
Lender may, without the consent of the Borrower or the Administrative Agent,
sell participations to one or more banks or other entities (a “Participant”) in all
or a portion of such Lender’s rights and obligations under this Agreement
(including all or

          


          
            
              
                 


              

              
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          a portion
of its Commitments and the Advances owing to it); provided that
(A) such Lender’s obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations and (C) the Borrower, the Agent and
the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement. Any
agreement pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such
agreement may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver that
(1) requires the consent of each Lender directly affected thereby pursuant
to the proviso to the second sentence of Section 9.1 and
(2) directly affects such Participant. Subject to paragraph (d)(ii) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections
2.15, 2.15 and 2.19 to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 2.17(b)
as though it were a Lender, provided such Participant shall be subject to Section 2.17(a)
as though it were a Lender.

           

          (ii)  A
Participant shall not be entitled to receive any greater payment under Section 2.16
than the applicable Lender would have been entitled to receive with respect to
the participation sold to such Participant, unless the sale of the participation
to such Participant is made with the Borrower’s prior written consent. Any
Participant that is a Non-U.S. Lender shall not be entitled to the benefits of
Section 2.19
unless such Participant complies with Section 2.19(d).

           

          (e)  Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank, and this Section shall not apply to any such pledge or assignment of a
security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any of
its obligations hereunder or substitute any such pledgee or Assignee for such
Lender as a party hereto.

           

          (f)      
[Reserved.]

           

          (g)  Subject
to Section 9.16,
the Borrower authorizes each Lender to disclose to any Transferee and any
prospective Transferee (in each case which agrees to comply with the provisions
of Section 9.16 or
confidentiality requirements no less restrictive on such prospective transferee
than those set forth in Section 9.16)
any and all financial information in such Lender’s possession concerning the
Borrower and its Affiliates which has been delivered to such Lender by or on
behalf of the Borrower pursuant to this Agreement or any other Credit Document
or which has been delivered to such Lender by or on behalf of the Borrower in
connection with such Lender’s credit evaluation of the Borrower and its
Affiliates prior to becoming a party to this Agreement.

          


          
            
              
                 


              

              
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          SECTION
9.06. 
Expenses;
Indemnity.

           

          The
Borrower agrees (a) to pay or reimburse each Agent and each Lender for all its
out-of-pocket costs and expenses reasonably incurred in connection with the
development, preparation and execution of, any amendment, supplement or
modification to this Agreement, the other Credit Documents and any other
documents prepared in connection herewith or therewith, in the case of the
Agents, the consummation and administration of the transactions contemplated
hereby and thereby, and the reasonable fees and disbursements of counsel to the
Agents and professionals engaged by the Agents, and filing and recording fees
and expenses, (b) to pay or reimburse each Agent and each Lender for all its
costs and expenses reasonably incurred in connection with the enforcement or
preservation of any rights under this Agreement, the other Credit Documents and
any such other documents following the occurrence and during the continuance of
a Default or an Event of Default, including without limitation, the reasonable
fees and disbursements of counsel to the Agents and each Lender and
professionals engaged by the Agents and the Lenders, (c) to pay, and indemnify
and hold harmless each Lender, the Lead Arranger and each Agent from, any and
all recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other taxes, if any, which
may be payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the other Credit Documents
and any such other documents and (d) to pay, and indemnify and hold harmless
each Lender, the Lead Arranger, each Agent and each of their respective
Affiliates, directors, officers, employees and agents (each, an “Indemnitee”)
from and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance, preservation of rights and administration of this Agreement, the
other Credit Documents or the use of the proceeds of the Advances, including
without limitation, any of the foregoing relating to the violation of,
noncompliance with or liability under, any Environmental Law applicable to the
operations of the Loan Parties or any of their respective properties and the
reasonable fees and expenses of legal counsel in connection with claims, actions
or proceedings by any Indemnitee against any Loan Party under any Credit
Document (all the foregoing in this clause (d), collectively, the “indemnified
liabilities”), provided that the
Borrower shall have no obligation hereunder to any Indemnitee with respect to
indemnified liabilities determined by the final judgment of a court of competent
jurisdiction to have resulted from the bad faith, gross negligence or willful
misconduct of such Indemnitee or any of such Indemnitee’s affiliates or any of
such Indemnitee’s directors, officers, employees or agents; provided, further, that the
Borrower shall in no event be responsible for punitive damages to any Indemnitee
pursuant to this Section 9.06 except such punitive damages required to be paid
by such Indemnitee in respect of any indemnified liabilities.  Without
limiting the foregoing, and to the extent permitted by applicable law, the
Borrower agrees not to assert and to cause its Subsidiaries not to assert, and
hereby waives and agrees to cause its Subsidiaries to waive, all rights for
contribution or any other rights of recovery with respect to all claims,
demands, penalties, fines, liabilities, settlements, damages, costs and expenses
of whatever kind or nature, under or related to Environmental Laws, that any of
them might have by statute or otherwise against any Indemnitee.  To
the extent permitted by applicable law, no Loan Party nor any of their
respective Subsidiaries shall assert, and each Loan Party hereby waives, on
behalf of itself and its Subsidiaries, any claim against each Lender, the Lead
Arranger, each Agent and their

          


          
            
              
                 


              

              
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          respective
affiliates, directors, employees, attorneys, agents or sub-agents, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) (whether or not the claim therefor is based
on contract, tort or duty imposed by any applicable legal requirement) arising
out of, in connection with, as a result of, or in any way related to, this
Agreement or any other Credit Document or any agreement or instrument
contemplated hereby or thereby or referred to herein or therein, the
transactions contemplated hereby or thereby, any Advance or the use of the
proceeds thereof or any act or omission or event occurring in connection
therewith, and each Loan Party hereby waives, releases and agrees, on behalf of
themselves and each of their respective Subsidiaries, not to sue upon any such
claim or any such damages, whether or not accrued and whether or not known or
suspected to exist in its favor.  All amounts due under this Section
9.06 shall be payable not later than 10 days after written demand
therefor.  Statements payable by the Borrower pursuant to this Section
9.06 shall be submitted to the Chief Financial Officer of the Borrower (Telecopy
No. 408-995-0505), at the address of the Borrower set forth in Section 9.02
(with copies (which shall not constitute notice) to the General Counsel of the
Borrower and Kirkland & Ellis LLP at the respective addresses set forth in
Section 9.02), or to such other Person or address as may be hereafter designated
by the Borrower in a written notice to the Administrative Agent.  The
agreements in this Section shall survive repayment of the Advances and all other
amounts payable hereunder.

           

          SECTION
9.07. 
[Reserved]

           

          SECTION
9.08. 
Applicable Law.

           

          THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.

           

          SECTION
9.09. 
Waivers;
Amendment.

           

          (a)  No
failure or delay of any Agent or any Lender in exercising any power or right
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power.  The rights and
remedies of the Agents and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise
have.  No waiver of any provision of this Agreement or consent to any
departure therefrom shall in any event be effective unless the same shall be
permitted by subsection (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which
given.  No notice or demand on the Borrower or any Subsidiary in any
case shall entitle such party to any other or further notice or demand in
similar or other circumstances.

           

          (b)  Neither
this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the
Borrower and the Required Lenders; provided, however,
that no such agreement shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date, or date for the payment of
any interest on, any Advance or date for the payment of any Fee, or waive or
excuse any such payment or any part thereof, or decrease the rate of interest on
any Advance

          


          
            
              
                 


              

              
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          (except
that waiver of the applicability of any post-default increase in interest rates
shall require only the consent of the Required Lenders), without the prior
written consent of each Lender directly and adversely affected thereby, (ii)
increase the Commitment of any Lender or decrease any Fee payable to any Lender
without the prior written consent of such Lender, or (iii) release all or
substantially all of the liens, guarantees or collateral provided hereunder
without the prior written consent of each Lender directly and adversely affected
thereby; provided, further,
that (A) no such agreement shall amend or modify the provisions of Section 2.16,
Section 2.17 or Section 9.04(i), the provisions of this Section or the
definition of the “Required Lenders”, without the prior written consent of each
Lender and (B) no such agreement shall amend, modify or otherwise affect the
rights or duties of any Agent hereunder without the prior written consent of
such Agent.  Each Lender shall be bound by any waiver, amendment or
modification authorized by this Section, and any consent by any Lender or any
Agent pursuant to this Section shall bind any assignee of its rights and
interests hereunder.

           

          (c)  The
Borrower shall have the right to replace any non-consenting Lender in connection
with a waiver, amendment or modification requiring the consent of all Lenders or
of all Lenders affected thereby (including the matters referred to in clauses
(i), (ii), (iii), (A) and (B) of Section 9.08(b) above) pursuant to the
following terms and conditions of this Section 9.08(c).  If the
Borrower wishes to replace any such non-consenting Lender, it shall give written
notice to such Lender and the Agent of its desire to replace such Lender, which
notice shall identify the waiver, amendment or modification to which such Lender
was unwilling to consent and the party that the Borrower proposes as the
assignee of such Lender’s Commitment (which may, but is not required to, be an
existing Lender).  Promptly after receiving such notice, the Agent
shall fix a Business Day on which such non-consenting Lender and the proposed
assignee shall execute an Assignment and Acceptance with respect to the
non-consenting Lender’s Commitment.  The Borrower shall be responsible
for paying the assignment fee due pursuant to Section 9.04(b)
above.  On the effective date of such assignment, the assignee of such
Commitment shall purchase at par (a) all principal, interest, fees and other
amounts owing to the replaced Lender through that date and (b) such replaced
Lender shall be released from its future obligations under this Agreement and
any other related agreement or any document entered into in connection herewith
as if such Lender had assigned its Commitment to such assignee pursuant to
Section 9.05.

           

          (d)  The
Borrower shall have the right to replace any Lender that (i) is affected in the
manner described in Section 2.15 and as a result thereof any of the actions
described in such Section is required to be taken or (ii) becomes a Defaulting
Lender, pursuant to the following terms and conditions of this Section 9.08(d);
provided that
(x) such replacement does not conflict with any applicable law and (y) no Event
of Default under Section 7(a) or 7(f) shall have occurred or be continuing at
the time of such replacement.  If the Borrower wishes to replace any
such Lender, it shall give written notice to such Lender and the Agent of its
desire to replace such Lender, which notice shall identify the reason for such
replacement and the party that the Borrower proposes as the assignee of such
Lender’s Commitment (which may, but is not required to, be an existing
Lender).  Promptly after receiving such notice, the Agent shall fix a
Business Day on which such replaced Lender and the proposed assignee shall
execute an Assignment and Acceptance with respect to the replaced Lender’s
Commitment.  The Borrower shall be responsible for paying the
assignment fee due pursuant to Section 9.04(b) above.  On the
effective date of such assignment, the assignee of such Commitment shall
purchase at par (a) all

          


          
            
              
                 


              

              
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          principal,
interest, fees and other amounts owing to the replaced Lender through that date
and (b) such replaced Lender shall be released from its future obligations under
this Agreement and any other related agreement or any document entered into in
connection herewith as if such Lender had assigned its Commitment to such
assignee pursuant to Section 9.05.

           

          (e)  Notwithstanding
anything to the contrary contained in this Section 9.09, if the Agent and the
Borrower have jointly identified an obvious error or any error or omission of a
technical or immaterial nature, in each case, in any provision of the Credit
Documents, then the Agent and the Borrower shall be permitted to amend such
provision and such amendment shall become effective without any further action
or consent of any other party to any Credit Document if the same is not objected
to in writing by the Required Lenders within ten Business Days following receipt
of notice thereof

           

          SECTION
9.10. 
Entire Agreement.

           

          This
Agreement (including the schedules, exhibits and annexes hereto) and the Fee
Letter represent the entire contract among the parties relative to the subject
matter hereof and thereof.  Any previous agreement, whether written or
oral, among the parties with respect to the subject matter hereof, is superseded
by this Agreement, the Fee Letter and the Letter Agreement.  There are
no unwritten oral agreements between the parties.  Nothing in this
Agreement, expressed or implied, is intended to confer upon any party other than
the parties hereto any rights, remedies, obligations or liabilities under or by
reason of this Agreement.

           

          SECTION
9.11. 
Severability.

           

          In the
event any one or more of the provisions contained in this Agreement should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not in any
way be affected or impaired thereby.  The parties shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable
provisions.

           

          SECTION
9.12. 
Counterparts.

           

          This
Agreement may be executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together shall constitute but
one contract, and shall become effective as provided in Section
9.04.

           

          SECTION
9.13. 
Headings.

           

          Article
and Section headings and the Table of Contents used herein are for convenience
of reference only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting, this
Agreement.

           

          SECTION
9.14. 
Interest Rate
Limitation.

           

          (a)  Notwithstanding
anything herein to the contrary, if at any time the applicable interest rate,
together with all fees and charges which are treated as interest under
applicable law

          


          
            
              
                 


              

              
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          (collectively
the “Charges”),
as provided for herein or in any other document executed in connection herewith,
or otherwise contracted for, charged, received, taken or reserved by any Lender,
shall exceed the maximum lawful rate (the “Maximum
Rate”) which may be contracted for, charged, taken, received or reserved
by such Lender in accordance with applicable law, the rate of interest payable
on the Outstanding Advances of such Lender, together with all Charges payable to
such Lender, shall be limited to the Maximum Rate.

           

          (b)  If the
amount of interest, together with all Charges, payable for the account of any
Lender in respect of any interest computation period is reduced pursuant to
subsection (a) above and the amount of interest, together with all Charges,
payable for such Lender’s account in respect of any subsequent interest
computation period, would be less than the Maximum Rate, then the amount of
interest, together with all Charges, payable for such Lender’s account in
respect of such subsequent interest computation period shall, to the extent
permitted by applicable law, be automatically increased to such Maximum Rate;
provided that
at no time shall the aggregate amount by which interest paid for the account of
any Lender has been increased pursuant to this subsection (b) exceed the
aggregate amount by which interest, together with all Charges, paid for its
account has theretofore been reduced pursuant to subsection (a)
above.

           

          SECTION
9.15. 
Jurisdiction;
Venue.

           

          (a)  The
Borrower hereby irrevocably and unconditionally waives, to the fullest extent it
may legally and effectively do so, any objection which it may now or thereafter
have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement in any New York State court or Federal court of the
United States of America sitting in New York City.  Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.  The Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or Federal court of the United States
of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court.  Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.  Subject to the
foregoing and to subsection (b) below, nothing in this Agreement shall affect
any right that any party hereto may otherwise have to bring any action or
proceeding relating to this Agreement against any other party hereto in the
courts of any jurisdiction.

           

          (b)  The
Borrower hereby agrees to waive its respective rights to a jury trial of any
claim or cause of action based upon or arising under this Agreement, any
dealings between them relating to the subject matter of this transaction or the
lender/borrower relationship that is being established.  The scope of
this waiver is intended to be all encompassing of any and all disputes that may
be filed in any court and that relate to the subject matter of this transaction,
including contract claims, tort claims, breach of duty claims and all other
common law and statutory claims.  The Borrower acknowledges that this
waiver is a material inducement to enter into a

          


          
            
              
                 


              

              
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          business
relationship, that it has already relied on this waiver in entering into this
agreement, and that each will continue to rely on this waiver in its related
future dealings.  The Borrower further warrants and represents that it
has reviewed this waiver with its legal counsel and that it knowingly and
voluntarily waives its jury trial rights following consultation with legal
counsel.  This waiver is irrevocable, meaning that it may not be
modified either orally or in writing (other than by a mutual written waiver
specifically referring to this Section 9.14(b) and executed by each of the
parties hereto), and this waiver shall apply to any subsequent amendments,
renewals, supplements or modifications hereto or to any other documents or
agreements relating to the advances made hereunder.  In the event of
litigation, this agreement may be filed as a written consent to a trial by the
court.

           

          SECTION
9.16. 
Confidentiality.

           

          Each
Agent, the Lead Arranger and each Lender agrees to keep confidential all
non-public information provided to it by any Loan Party, the Agent or any Lender
pursuant to or in connection with this Agreement that is designated by the
provider thereof as confidential; provided that nothing
herein shall prevent any Agent, the Arranger or any Lender from disclosing any
such information (a) to the Agent, any other Lender or any affiliate
thereof, (b) subject to an agreement to comply with provisions no less
restrictive than this Section, to any actual or prospective Transferee or any
direct or indirect counterparty to any Swap Agreement (or any professional
advisor to such counterparty), (c) to its employees, directors, agents,
attorneys, accountants and other professional advisors or those of any of its
affiliates, (d) upon the request or demand, or in accordance with the
requirements (including reporting requirements), of any Governmental Authority
having jurisdiction over such Lender, provided that such
Lender shall use commercially reasonable efforts to notify the applicable Loan
Party of such disclosure, (e) in response to any order of any court or
other Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law or other legal process, provided that such
Lender shall use commercially reasonable efforts to notify the applicable Loan
Party of such disclosure, (f) if requested or required to do so in
connection with any litigation or similar proceeding, (g) that has been
publicly disclosed other than in breach of this Agreement, (h) to the
National Association of Insurance Commissioners or any similar organization or
any nationally recognized rating agency that requires access to information
about a Lender’s investment portfolio in connection with ratings issued with
respect to such Lender, or (i) in connection with the exercise of any
remedy hereunder or under any other Credit Document.

           

          The
Borrower acknowledges that certain of the Lenders may be “public-side” Lenders
(Lenders that do not wish to receive material non-public information with
respect to the Borrower, its subsidiaries or their securities) (each, a “Public
Lender”) and, if documents required to be delivered pursuant to Sections
5.01 or 5.02 or otherwise are being distributed through the Platform, the
Borrower agrees to designate those documents or other information that are
suitable for delivery to the Public Lenders as such. Any document that the
Borrower has indicated contains non-public information shall not be posted on
that portion of the Platform designated for such Public Lenders. If the Borrower
has not indicated whether a document delivered pursuant to Sections 5.01 or 5.02
contains non-public information, the Agent reserves the right to post such
document or notice solely on that portion of the Platform designated for Lenders
who wish to receive material nonpublic information with respect to the Borrower,
its Subsidiaries and their securities. Each such Lender confirms to the Borrower
and the Agent that

          


          
            
              
                 


              

              
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          (i) it
has developed compliance procedures regarding the use of material non-public
information and (ii) it will handle such material non-public information in
accordance with those procedures and applicable law, including Federal and state
securities laws.  The Borrower acknowledges and agrees that copies of
the Credit Documents may be distributed to Public Lenders (unless the Borrower
promptly notifies the Agent that any such document contains material non-public
information with respect to the Borrower or its securities).

           

          SECTION
9.17. 
Electronic
Communications.

           

          (a)  The
Borrower hereby agrees that it will provide to the Agent all information,
documents and other materials that it is obligated to furnish to the Agent under
this Agreement (collectively, the “Communications”)
by transmitting the Communications in Microsoft Word, Adobe Portable Document
Format (PDF) or other electronic/soft medium format that is reasonably
acceptable to the Agent to ficc-ny-loans-agency@gs.com, walt.jackson@gs.com,
andrew.pardo@gs.com, douglas.tansey@gs.com and umesh.subramanian@gs.com or
faxing the Communications to (212) 357-4597, or to such other addressee as the
Agent may notify the Borrower from time to time.  In addition, the
Borrower agrees to continue to provide the Communications to the Agent in the
manner otherwise specified in this Agreement, but only to the extent reasonably
requested by the Agent.

           

          (b)  The Agent
agrees that the receipt of the Communications by the Agent at its e-mail address
set forth above shall constitute effective delivery of the Communications to the
Agent for purposes of this Agreement.  Each Lender agrees to notify
the Agent in writing (including by electronic communication) from time to time
of such Lender’s e-mail address to which the foregoing notice may be sent by
electronic transmission and that the foregoing notice may be sent to such e-mail
address.

           

          (c)  Nothing
herein shall prejudice the right of any Agent or any Lender to give any notice
or other communication pursuant to this Agreement in any other manner specified
in this Agreement.

           

          SECTION
9.18. 
Patriot
Act.

           

          Each
Lender that is subject to the requirements of the Patriot Act hereby notifies
each Loan Party that pursuant to the requirements of the Patriot Act, it is
required to obtain, verify and record information that identifies each Loan
Party, which information includes the name and address of such Loan Party and
other information that will allow such Lender to identify such Loan Party in
accordance with the Patriot Act. The Borrower shall, and shall cause each of its
Subsidiaries to, provide, to the extent commercially reasonable, such
information and take such actions as are reasonably requested by each Lender and
the Agent to maintain compliance with the Patriot Act.

           

          SECTION
9.19. 
Electronic
Execution of Assignments.

           

          The words
“execution,” “signed,” “signature,” and words of like import in any Assignment
and Acceptance shall be deemed to include electronic signatures or the keeping
of records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping

          


          
            
              
                 


              

              
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          system,
as the case may be, to the extent and as provided for in any applicable law,
including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar
state laws based on the Uniform Electronic Transactions Act.

           

          SECTION
9.20. 
No
Fiduciary Duty.

           

          Each
Agent, each Lender and their Affiliates (collectively, solely for purposes of
this paragraph, the “Lenders”),
may have economic interests that conflict with those of the
Borrower.  The Borrower agrees that nothing in this Agreement or any
agreement or instrument related hereto or otherwise will be deemed to create an
advisory, fiduciary or agency relationship or fiduciary or other implied duty
between the Lenders and the Borrower, its stockholders or its
affiliates.  Borrower acknowledges and agrees that (i) the
transactions contemplated by this Agreement and the agreements and instruments
related hereto are arm’s-length commercial transactions between the Lenders, on
the one hand, and the Borrower, on the other, (ii) in connection therewith and
with the process leading to such transaction, each of the Lenders is acting
solely as a principal and not the agent or fiduciary of the Borrower, its
management, stockholders, creditors or any other Person, (iii) no Lender has
assumed an advisory or fiduciary responsibility in favor of the Borrower with
respect to the transactions contemplated hereby or the process leading thereto
(irrespective of whether any Lender or any of its affiliates has advised or is
currently advising the Borrower on other matters) or any other obligation to the
Borrower except the obligations expressly set forth in this Agreement and the
agreements and instruments related hereto and (iv) the Borrower has consulted
its own legal and financial advisors to the extent it deemed
appropriate.  The Borrower further acknowledges and agrees that it is
responsible for making its own independent judgment with respect to such
transactions and the process leading thereto.  The Borrower agrees
that it will not claim that any Lender has rendered advisory services of any
nature or respect, or owes a fiduciary or similar duty to the Borrower, in
connection with such transaction or the process leading thereto.

           

          SECTION
9.21. 
Trading
Acknowledgment.

           

          The
Borrower hereby acknowledges that, with respect to Original Lenders, (i) one or
more of their respective affiliates (“Trading
Affiliates”) are merchants of crude oil, petroleum products, natural gas,
electricity and other commodities and may, from time to time, be dealing with
prospective counterparties, or pursuing trading or hedging strategies, in
connection with aspects of such Trading Affiliates’ business that are unrelated
to the Facility and that such dealings and such trading or hedging strategies
may be different from or opposite to those being pursued by, for, or in
connection with, the Facility or by or for the Borrower or the Borrower’s
account, (ii) nothing herein or in the other Credit Documents shall be construed
to prevent any such Trading Affiliate, or any of its partners, officers,
employees or affiliates, in any way from purchasing, selling or otherwise
trading in crude oil, petroleum products, natural gas or any other commodity for
its or their own account or for the account of others, whether prior to,
simultaneously with or subsequent to the term of the Facility and (iii) such
trading and hedging activities may be in conflict with or have an adverse effect
on the trading or hedging activities of the Borrower or transactions to which
the Borrower is a party (including transactions that may be referenced in the
Facility).

          


          
            
              
                 


              

              
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          SECTION
9.22. 
Lien
Sharing and Priority Confirmation.

           

          The Agent
and the Lenders hereby agree:

           

          
            	
                    (a)         
       

                  	
                    that
      all First Lien Obligations (as defined in the Collateral Agency and
      Intercreditor Agreement) including the Obligations of the Borrower under
      this Agreement will be and are secured equally and ratably by all First
      Liens (as defined in the Collateral Agency and Intercreditor Agreement) at
      any time granted by the Borrower or any other Guarantor to secure any
      First Lien Obligations in respect of the Series of First Lien Debt (as
      defined in the Collateral Agency and Intercreditor Agreement) in respect
      of this Agreement, whether or not upon property otherwise constituting
      collateral to such Series of First Lien Debt, and that all such First
      Liens will be enforceable by the Collateral Agent under and as defined in
      the Collateral Agency and Intercreditor Agreement for the benefit of all
      holders of First Lien Obligations equally and
  ratably;

                  


          

           

          
            	
                    (b)         
       

                  	
                    that
      the Agent and the Lenders and any other holders of Obligations in respect
      of this Agreement are bound by the provisions of the Collateral Agency and
      Intercreditor Agreement including without limitation (x) the provisions
      relating to the ranking of First Liens and the order of application of
      proceeds from enforcement of First Liens and (y) the provisions of Section
      8.22 thereof; and

                  


          

           

          
            	
                    (c)           
      

                  	
                    that
      the Agent and the Lenders consent to and direct the Collateral Agent under
      and as defined in the Collateral Agency and Intercreditor Agreement to
      perform its obligations under the Collateral Agency and Intercreditor
      Agreement and the other Security Documents (as defined in the Collateral
      Agency and Intercreditor
Agreement).

                  


          

           

          The
foregoing provisions of this Section 9.22 are intended for the enforceable
benefit of, and will be enforceable as a third party beneficiary by, each
present and future holder of each existing and future Series of Secured Debt (as
defined in the Collateral Agency and Intercreditor Agreement), each present and
future holder of First Lien Obligations, each present and future Secured Debt
Representative (as defined in the Collateral Agency and Intercreditor Agreement)
and the Collateral Agent under and as defined in the Collateral Agency and
Intercreditor Agreement.

           

          [Signatures
pages follow]

           

          


          
            
              
                 


              

              
                83

                
                  

                

              

              
                 


              

            

          

          


          IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.

          


          
            	 
      	
                    CALPINE
      CORPORATION

                  
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                    By:

                  	
                      /s/   
      Jeffrey Kinneman 

                  
	 
      	 
      	
                    Name: 
      Jeffrey Kinneman

                    Title: 
      Senior Vice President

                  


          

          


          


          


          
            
              
                
                  


                  


                  S-1

                  


                

                 


              

              
                 


                
                  

                

              

              
                 


              

            

          

          


          


          
            	 
      	
                    GOLDMAN
      SACHS CREDIT PARTNERS

                  
	 
      	
                    L.P.,
      as Payment Agent

                  
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                    By:

                  	
                      /s/   
      Marc Nachmann

                  
	 
      	 
      	
                    Authorized
      Signatory

                  


          

          


          


          


          
            
              
                
                  


                  


                  S-2

                  


                

                 


              

              
                 


                
                  

                

              

              
                 


              

            

          

          


          


          
            	 
      	
                    GSLP
      I OFFSHORE HOLDINGS FUND A,

                  
	 
      	
                    L.P.,
      as a Lender

                  
	 
      	 
      	 
      
	 
      	
                    By:  Goldman,
      Sachs & Co., Duly Authorized

                  
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                    By:

                  	
                      /s/   
      John E. Bowman

                  
	 
      	 
      	
                    Name:      
      John E. Bowman

                    Title:      
      Managing Director

                  


          

           

           

           

           

          

            


            
              	 
      	
                      GSLP
      I OFFSHORE HOLDINGS FUND B,

                    
	 
      	
                      L.P.,
      as a Lender

                    
	 
      	 
      	 
      
	 
      	
                      By:  Goldman,
      Sachs & Co., Duly Authorized

                    
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                      By:

                    	
                        /s/   
      John E. Bowman

                    
	 
      	 
      	
                      Name:      
      John E. Bowman

                      Title:      
      Managing Director

                    


            

             

             

             

             

             

            
              


              
                	 
      	
                        GSLP
      I OFFSHORE HOLDINGS FUND C,

                      
	 
      	
                        L.P.,
      as a Lender

                      
	 
      	 
      	 
      
	 
      	
                        By:  Goldman,
      Sachs & Co., Duly Authorized

                      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                        By:

                      	
                          /s/   
      John E. Bowman

                      
	 
      	 
      	
                        Name:      
      John E. Boxman

                        Title:      
      Managing Director

                      


              

              


              
 

            

          

          


          
            
              
                
                  


                  


                  S-3

                  


                

                 


              

              
                 


                
                  

                

              

              
                 


              

            

          

           

           

          


           

          


          


          EXHIBIT
A

           

          Form
of

           

          ASSIGNMENT
AND ACCEPTANCE

           

          [Date]

           

          Reference
is made to the Commodity Collateral Revolving Credit Agreement, dated as of July
8, 2008 (as amended, modified, extended or restated from time to time, the
“Agreement”),
among Calpine Corporation (the “Borrower”),
the lenders party thereto (the “Lenders”),
Goldman Sachs Credit Partners L.P. (“GSCP”), as
payment agent for the Lenders (in such capacity, the “Payment
Agent”) and GSCP, as sole lead arranger and sole bookrunner (in such
capacity, the “Lead
Arranger”).  Terms defined in the Agreement are used herein
with the same meanings.

           

          1.           The
Assignor hereby sells and assigns, without recourse, to the Assignee, and the
Assignee hereby purchases and assumes, without recourse, from the Assignor,
effective as of the Effective Date (as defined below, the interests set forth on
the reverse hereof (the “Assigned
Interest”) in the Assignor’s rights and obligations under the Agreement,
including, without limitation, the interests set forth on the reverse hereof in
the Commitment of the Assignor on the Effective Date and the Advances owing to
the Assignor that are outstanding on the Effective Date, together with unpaid
interest accrued on the assigned Advances to the Effective Date and the amount,
if any, set forth on the reverse hereof of the Fees accrued to the Effective
Date for the account of the Assignor.  Each of the Assignor and the
Assignee hereby makes and agrees to be bound by all the representations,
warranties and agreements set forth in Section 8.03 of the Agreement, a copy of
which has been received by each such party.  From and after the
Effective Date, (i) the Assignee shall be a party to and be bound by the
provisions of the Agreement and, to the extent of the interests assigned by this
Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall, to the extent of the interests assigned
by this Assignment and Acceptance, relinquish its rights and be released from
its obligations under the Agreement.

           

          2.           This
Assignment and Acceptance is being delivered to the Agent together with (i) if
the Assignee is organized under the laws of a jurisdiction outside the United
States, the forms specified in Section 2.19(g) of the Agreement, duly completed
and executed by such Assignee and (ii) a processing and recordation fee of
$3,500.

           

          3.           This
Assignment and Acceptance shall be governed by and construed in accordance with
the laws of the State of New York.

           

          Date of
Assignment:

           

          


           

          


          
            
              
                 


              

              
                 


                
                  

                

              

              
                 


              

            

          

          


          Legal
Name of Assignor:

           

          


           

          


           

          Legal
Name of Assignee:

           

          


           

          


           

          Assignee’s
Address for Notices:

           

          


           

          


           

          Effective
Date of Assignment

          (may not
be fewer than 5 Business

          Days
after the Date of Assignment

          unless
otherwise agreed by the Agent) (the “Effective Date”):

          


           

          


           

          
            	 
      	
                    Facility

                  	
                    Principal
      Amount Assigned

                  	
                    Percentage
      Assigned of

                    Facility/Commitment
      (set

                    forth,
      to at least 8 decimals, as

                    a
      percentage of the

                    Facility
      and the aggregate

                    Commitments
      of all

                    Lenders
      thereunder

                     

                  	 
      
	 	 	 	 	 
	 
      	
                    Commitment
      Assigned:

                  	
                    $_____________

                  	
                    _____________%

                  	 
      
	 	 	 	 	 
	 	 	 	 	 
	 
      	
                    Advances:

                  	
                    $_____________

                  	
                    _____________%

                  	 
      
	 	 	 	 	 
	 	 	 	 	 
	 
      	
                    Fees
      Assigned (if any):

                  	
                    $_____________

                  	
                    _____________%

                  	 
      
	 	 	 	 	 


          

        

         

         

        
          


          
            
              
                 


              

              
                 


                
                  

                

              

              
                 


              

            

          

          


          


          
            	
                    The
      terms set forth and on the reverse

                    side
      hereof are hereby agreed to:

                  	
                    Accepted:

                     

                  
	 
      	 
      	 
      
	
                    [ASSIGNOR],
      as Assignor

                  	
                    CALPINE
      CORPORATION

                  
	 
      	 
      	 
      
	
                    By:,
      as

                  	
                    By:

                  	
                      /s/ 

                  
	
                    Name:

                  	
                    Name:

                  
	
                    Title:

                  	
                    Title:

                  
	 
      	 
      	 
      
	
                    [ASSIGNEE],
      as Assignee,

                  	
                    [                 
        ], as Agent

                  
	 
      	 
      	 
      
	
                    By:,
      as

                  	 
      	 
      
	
                    Name:

                  	 
      	 
      
	
                    Title:

                  	 
      	 
      
	 
      	 
      	 
      
	 
      	
                    By:

                  	
                      /s/ 

                  
	 
      	
                    Name:

                  
	 
      	
                    Title:

                  


          

          


          


          


          
            
              
                 


              

              
                 


                
                  

                

              

              
                 


              

            

          

          


          EXHIBIT
B

           

          Disclaimer
for Mark-to-Market Calculations

           

          The
attached information represents the “MTM Exposure” as of the indicated Business
Day that is being calculated for purposes of Section 2.02(b) of the Commodity
Collateral Revolving Credit Agreement, dated as of July 8, 2008, among the
Borrower, the lenders party thereto (the “Lenders”)
and GSCP, as Payment Agent for the Lenders and Lead Arranger (the “Credit
Agreement”).  This information is being provided for your
consideration and not for the purpose of soliciting or recommending any action
by you.  You should carefully review the explanations that are included
with the attached information and ensure that you understand the information
that is being provided.  Any questions regarding the nature of this
information should be raised promptly with your Goldman Sachs contact
person.

           

          If a
valuation listed in the attached information is designated as an “unwind” price,
then it represents the price at which Goldman Sachs or one of its affiliates
(“Goldman
Sachs”) is prepared to unwind the position.  If a valuation is
designated as a “mid-market” valuation, then it represents either (1) Goldman
Sachs’ good faith estimate of the mid-market value of the position, based on
estimated or actual bids and offers for the positions, or (2) a “mid-market”
price generated by proprietary valuation models utilized by Goldman Sachs or its
affiliates.  If designated as an “approximate mid-current rate,” then a
valuation represents Goldman Sachs’ good faith estimate of the mid-market fixed
rate of a new transaction with the same terms and conditions and the same
remaining term to maturity.  If a valuation is not designated as an
“unwind” or “mid-market” price or an “approximate mid-current rate,” then it has
been derived through the use of another methodology selected by Goldman Sachs at
its discretion.  Any valuation that is not designated as an “unwind” does
not reflect actual trading prices at any time and should not be relied upon as
the value at which a position may be unwound or terminated.  In determining
the valuation of positions through the use of any of the foregoing
methodologies, Goldman Sachs might not take into account certain factors,
including, without limitation, the creditworthiness of the parties, funding
costs, portfolio level adjustments and liquidity adjustments based on
size.  These factors, taken together with the size of the position and any
leverage embedded in the position, may affect the valuation.  For example,
if a valuation is designated as “without delta,” the bid/offer spread on the
relevant position is likely to be wider than would be the case if the valuation
was provided “with delta.”

           

          Any
valuations presented in the attached information represent Goldman Sachs’
assessment of the value of the particular position only as of the relevant
market close on the date indicated, unless otherwise specified, and any such
valuation is not applicable at any other time.  If other times are
specified, they are approximate only.

           

          If a
valuation listed in the attached information is expressed in terms of a position
of a specified size, then the valuation is applicable only with respect to that
size.  The valuation does not indicate a price at which Goldman Sachs would
be willing to enter into a transaction with respect to any other size, nor does
it reflect a valuation that relates to a position or transaction of any other
size.  If no size is specified with respect to an unwind valuation for a
position, then the valuation indicated refers to the full amount of the
position.  The valuations listed in the attached information do not
necessarily reflect your entire portfolio.

          


          
            
              
                 


              

              
                 


                
                  

                

              

              
                 


              

            

          

          


          The
information presented in this document is based on assumptions, historical
information and pricing data that Goldman Sachs in its discretion considers
appropriate.  Goldman Sachs does not represent that this information is
accurate, complete or current, and Goldman Sachs has no liability with respect
thereto.  This information and the valuation methodologies used are subject
to change without notice and Goldman Sachs has no obligation to update you as to
any such changes.  This information may not reflect valuations you would
receive from other dealers, or even from affiliates or other business units of
Goldman Sachs, and does not necessarily reflect valuations you would obtain by
using pricing models available from Goldman Sachs or valuations included in the
books and records of Goldman Sachs.  This information is intended only as a
reference and should not be relied upon without further evaluation by you, in
consultation with your professional advisors, for the maintenance of your books
and records or for tax, accounting, financial reporting, disclosure or other
purposes.

           

          


           

          


          
            
              
                 


              

              
                 


                
                  

                

              

              
                 


              

            

          

          


          EXHIBIT
C

          Form
of

           

          BORROWING
NOTICE

           

          Date:____________,
200_

           

          
            	
                    To:

                  	
                    ___________________,
      as Agent

                  


          

           

          
            	
                     
      

                  	
                    _____________________________

                  


          

           

          
            	
                     
      

                  	
                    _____________________________

                  


          

           

          
            	
                     
      

                  	
                    _____________________________

                  


          

           

           

          
            	
                     
      

                  	
                    Re:  Calpine
      Corporation

                  


          

           

          Ladies
and Gentlemen:

           

          The
undersigned, Calpine Corporation (the “Borrower”),
refers to the Credit Agreement dated as of July 8, 2008 (as amended, modified,
renewed or extended from time to time, the “Agreement”),
among the Borrower, the lenders party thereto (the “Lenders”),
Goldman Sachs Credit Partners L.P. (“GSCP”), as
payment agent for the Lenders (in such capacity, the “Payment
Agent”) and GSCP, as sole lead arranger and sole bookrunner (in such
capacity, the “Lead
Arranger”).  Terms defined in the Agreement are used herein
with the same meaning.  The Borrower hereby gives you notice
irrevocably, pursuant to Section 2.04 of the Agreement, of the Advance specified
herein:

           

          1.           The
Related Advance Date of the proposed Advance is __________, 200_.

           

          2.           The
amount of the proposed Advance is $___________.

           

          3.           The
payment instructions with respect to the funds to be made available to the
Borrower are contained in Section 2.04(d) of the Agreement.

           

          4.           The
Borrower hereby certifies that the following statements are true on the date
hereof, and will be true on the Related Advance Date, before and after giving
effect thereto and to the application of the proceeds therefrom:

           

          (a)        all
representations and warranties of the Borrower contained in the Agreement and
the other Credit Documents, or otherwise made in writing in connection therewith
are true and correct in all material respects with the same effect as if made on
and as of each such date (unless stated to relate to a specific earlier date, in
which case such representations and warranties are true and correct in all
material respects as of such earlier date) (it being understood that any
representation or warranty that is qualified as to materiality or Material
Adverse Effect is true and correct in all respects);

           

          (b)        no
Default or Event of Default has occurred and is continuing or would result from
the making of such proposed Advance.

           

          


          
            
              
                 


              

              
                 


                
                  

                

              

              
                 


              

            

          

          


          


          
            	 
      	
                    CALPINE
      CORPORATION

                  
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                    By:

                  	
                      /s/ 

                  
	 
      	 
      	
                    Name:

                    Title:

                  


          

          


          


          


          
            
              
                 


              

              
                 


                
                  

                

              

              
                 


              

            

          

          


          EXHIBIT
D

          


          CERTAIN
REFERENCE PRICES

           

          


          
            	
                    NP-15
      Floating Price:

                  	
                    The
      Day-Ahead “Wtd Avg Index” for Peak Hours as published by the
      Intercontinental Exchange, Inc. (ICX) for the “NP-15 Peak” Hub, on its
      website currently located at https://www.theice.com/, or any successor
      thereto (as such price may be corrected or revised from time to time by
      ICX in accordance with its rules). Upon implementation of the California
      ISO Market Redesign and Technology Upgrade (“MRTU”), the “Floating Price”
      will be the arithmetic average of the day-ahead Locational Marginal Price
      (“LMP”) for Peak Hours, as posted by the California ISO for the NP-15 EZ
      Gen Trading Hub.

                  
	 
      	 
      
	
                    ERCOT
      Houston Floating Price:

                  	
                    The
      Day-Ahead “Wtd Avg Index” for Peak Hours as published by the
      Intercontinental Exchange, Inc. (ICX) for the “ERCOT-Houston Peak” Hub, on
      its website currently located at <https://www.theice.com/>, or any
      successor thereto (as such price may be corrected or revised from time to
      time by ICX in accordance with its rules).  In the event that
      ERCOT implements a congestion management system that includes Locational
      Marginal Pricing (“LMP”), then the “Floating Price” means for each day,
      the arithmetic average of the hourly Day-Ahead LMP for Peak Hours for the
      Trading Hub, as published by ERCOT, which has the highest “Concentration”
      of 345 kV buses from the original Houston Congestion Zone per the
      following formula:  For each Trading Hub, the “Concentration”
      shall be equal to: (a) the number of 345 kV buses common to both the
      applicable Trading Hub and the original Houston Congestion Zone divided by
      (b) the total number of 345 kV buses in such Trading
  Hub.

                  
	 
      	 
      
	
                    Houston
      Ship Channel:

                  	
                    The
      arithmetic average of the daily ‘Midpoint’ prices published in the section
      ‘Daily price survey’ under the heading ‘East-Houston-Katy’ for ‘Houston
      Ship Channel’ in Gas Daily for Peak Days occurring during the Calculation
      Period.

                  
	 
      	 
      
	
                    PG&E
      city-gate:

                  	
                    The
      arithmetic average of the daily ‘Midpoint’ prices published in the section
      ‘Daily price survey’ under the heading ‘Citygates’ for ‘PG&E
      city-gate’ in Gas Daily for Peak Days occurring during the Calculation
      Period.

                  


          

          


          


          
            
              
                 


              

              
                 


                
                  

                

              

              
                 


              

            

          

          


          SCHEDULE
2.01

           

          COMMITMENTS

           

          


           

          
            	 
      	
                    Lender

                  	
                    Commitment

                  	
                    Commitment
      Percentage

                  	 
      
	 
      	
                    GSLP
      I Offshore Holdings

                    Fund
      A, L.P.

                  	
                    $100,000,000

                  	
                    1/3

                  	 
      
	 
      	
                    GSLP
      I Offshore Holdings

                    Fund
      B, L.P.

                  	
                    $100,000,000

                  	
                    1/3

                  	 
      
	 
      	
                    GSLP
      I Offshore Holdings

                    Fund
      C, L.P.

                  	
                    $100,000,000

                  	
                    1/3

                  	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                    Total

                  	
                    $300,000,000

                  	
                    100%